Citation Nr: A21020515 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 190916-31624 DATE: December 27, 2021 ORDER Entitlement to a disability rating greater than 70 percent for major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's major depressive disorder does not cause a total social impairment or 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; and memory loss for names of close relatives, own occupation, or own name. 2. The Veteran was unable to obtain and sustain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for service-connected major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to 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 from February 1974 to December 1980. This matter is on appeal to the Board of Veterans' Appeals (Board) from an August 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the September 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran timely appealed the portion of the rating decision pertaining to the issue above and requested direct review of the evidence considered by the RO. 38 C.F.R. § 20.202. The Board denied this claim in April 2020, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the April 2020 decision and remand the matters to the Board. The Court found that the prior Board decision erred in finding that the TDIU issue was not on appeal. The Board had concluded that the evidence of unemployability was raised outside of the period on appeal, so was not on appeal under the AMA. The Court found that the Board did not consider whether the evidence of record before the AMA decision on appeal reasonably raised the issue of TDIU. The court pointed to a March 2019 private doctor's mental health evaluation and May 2019 VA examination. The Court vacated and remanded the Board's decision on this basis. After consideration of the concerns raised by the Court, the Board now finds that the TDIU was reasonably raised and, is therefore, within the scope of the appeal. 1. Entitlement to a disability rating greater than 70 percent for major depressive disorder The Veteran is seeking a higher initial rating for his major depressive disorder. The appeal period now before the Board begins April 2019, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 70 percent rating throughout the entire appeal period. Under the Mental Disorders Formula, a 70 percent rating is warranted 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating 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; and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran submitted a private treatment evaluation in May 2019. The examiner noted that the Veteran suffers from anxiousness and depressed mood. The Veteran reported symptoms of depressed mood nearly all day, feeling extremely sad and depressed, has uninterrupted sleep pattern of waking at night, reports feet and back ache, irritable easily, impaired concentration, and diminishing memory. Additionally, the Veteran underwent a VA examination in May 2019 where the examiner noted occupational and social impairment with reduced reliability and productivity. He endorsed symptoms of depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and suicidal ideation. The examiner noted functional impairments presenting as: emotional instability, including depressed mood, flattened affect, and suicidal ideation which impacts his day-to-day reliability and his ability to trust co-workers and supervisors; difficulty in establishing and maintaining effective work and social relationships which impacts his ability to connect with co-workers, supervisors, and the public in a reasonable and professional manner; difficulty adapting to stressful circumstances which impairs his ability to sustain employment in a workplace environment; chronic sleep impairment; disturbances of motivation and mood; and mild memory loss which hinder his ability to follow directions, receive instructions and to make decisions on the job. Overall, the evidence demonstrates that the Veteran suffers from occupational and social impairment with deficiencies in most areas. While the Veteran contends that his major depressive disorder, on its own, causes total occupational and social impairment, the medical evidence does not support this contention. There is no evidence of gross impairment in thought process, hallucinations or delusions, inappropriate behavior, a persistent danger to himself or others, the inability to care for himself, disorientation, or memory loss that is more than mild. His symptoms more closely approximate a 70 percent rating based on his depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, and suicidal ideation. Moreover, the Veteran reported at the May 2019 VA examination and that he had a positive relationship to his wife of 10 years, and he regularly communicated with his adult son. As he maintained social relationships with his wife and son, it cannot be found that there was not a total social impairment. The Board herein grants a TDIU based in part of the occupational impairment due to his major depressive disorder. Overall, the preponderance of the evidence is against a rating in excess of 70 percent for major depressive disorder. The appeal is denied. 2. Entitlement to a total disability rating based on individual unemployability The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. In his July 2019 TDIU application (VA Form 21-8940), the Veteran wrote that he last worked full-time and became too disabled to work in April 2019, which is also when his disabilities first affected full-time employment. He identified the service-connected disabilities preventing him from securing or following any substantial gainful employment as major depressive disorder, back, and foot conditions. He wrote that he last worked in maintenance at a hospital. He left this job because of his disability and had not tried to obtain employment since becoming too disabled to work. He had a high school education with additional education and training in maintenance. As the appeal arises from the increased rating claim for major depressive disorder, the appeal period for TDIU also begins from April 2019. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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. § 4.16(a). The Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected major depressive disorder, pes planus, degenerative arthritis of the thoracolumbar spine, bilateral hallux valgus, scar, and plantar warts. 38 C.F.R. § 4.16(a). The Veteran presented for a VA examination in October 2015 to assess the current severity of his service-connected back, scar, feet, and plantar warts, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported back pain, difficulty walking, and aching feet. The examiner reported that despite the reports of pain, the disabilities did not impact his ability to work. The Veteran presented for a VA Mental Health examination in May 2019 to assess the current severity of his service-connected major depressive disorder, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported the Veteran's major depressive disorder results in occupational and social impairment with reduced reliability and productivity. During clinical interview the Veteran reported endorsed depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting, and suicidal ideation. When asked to describe the functional impact the Veteran's disability has on his ability to work the examiner reported emotional instability, including depressed mood, flattened affect, and suicidal ideation which impacts his day-to-day reliability and his ability to trust co-workers and supervisors, difficulty in establishing and maintaining effective work and social relationships which impacts his ability to connect with co-workers, supervisors, and the public in a reasonable and professional manner, difficulty adapting to stressful circumstances which impairs his ability to sustain employment in a workplace environment, chronic sleep impairment, disturbances of motivation and mood, and mild memory loss which hinder his ability to follow directions, receive instructions and to make decisions on the job. Treatment records are not in significant conflict with findings during VA examination. Resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's service-connected disabilities at least as likely as not preclude gainful employment since April 23, 2019, his date of claim for an increased disability rating for his major depressive disorder. Although the October 2015 VA examiners did not find that the Veteran's disability impact his ability to work, he consistently reported back and foot pain that impacted him daily and made it difficult to work during the time he was working. More importantly, his psychiatric disability is a major hinderance in his ability to work. The May 2019 VA examiner detailed that his major depressive disorder impacted his motivation and mood, ability to maintain and establish effective work and social relationships, adapt to stressful circumstances, and his suicidal ideation impacted his day-to-day reliability. Overall, the psychiatric as well as physical disabilities impact his ability to obtain and maintain employability, especially considering he has worked in maintenance for the past 27 plus years. As such, entitlement TDIU from April 23, 2019 forward is granted. Corey Bosely Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hofmeister 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.