Citation Nr: 21005328 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-00 855 DATE: February 1, 2021 THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for major depressive disorder, recurrent with anxiety disorder not otherwise specified (claimed as posttraumatic stress disorder). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to a disability rating in excess of 50 percent for major depressive disorder, recurrent with anxiety disorder not otherwise specified (claimed as posttraumatic stress disorder) is denied. REMANDED Entitlement to a TIDU is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s service connected major depressive disorder, recurrent with anxiety disorder not otherwise specified (claimed as posttraumatic stress disorder) has been manifested by symptoms of occupational and social impairment with reduced reliability and productivity as a result of his psychiatric symptomatology, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for the assignment of a disability rating in excess of 50 percent for service-connected major depressive disorder, recurrent with anxiety disorder not otherwise specified have not been met or been approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to June 1971. The Veteran died in December 2016. The appellant is his surviving spouse. This matter comes before the Board of Veterans Appeals (Board) from an August 2012 rating decision issued by the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C. § 5121A (a). Here, the Veteran died in December 2016. At the time of his death, the Veteran had perfected his substantive appeal. In October 2017, his surviving spouse filed her application for substitution of claimant upon death of claimant. In November 2019, the appellant was determined to be eligible for substitution. See 38 U.S.C. § 5121A (a)(1). Therefore, the Board finds that the appellant has been properly substituted as the claimant for purposes of processing the Veteran's claim to completion. The Board notes that while the Veteran, prior to his death, requested a Board hearing, the appellant through her attorney, submitted a motion to waive the hearing. See October 2020 Third Party Correspondence. As such, the Board deems any hearing request withdrawn. The Board finds that prior to the Veteran’s death, the issue of entitlement to TDIU was explicitly raised by the Veteran in the record. As the issue has not been adjudicated by the RO, it must be remanded for development. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a disability rating in excess of 50 percent for major depressive disorder, recurrent with anxiety disorder not otherwise specified (claimed as posttraumatic stress disorder) is denied. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 rating 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. 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). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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). Here, the Board finds that the Veteran’s disability picture throughout the period on appeal is consistent, and therefore staged ratings are not appropriate. In the instant case, major depressive disorder, recurrent with anxiety disorder not otherwise specified is currently rated at 50 percent for the entire period on appeal pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. DC 9434 and other DCs addressing psychiatric disabilities are addressed under the General Rating Formula for Mental Disorders. Ratings are assigned according to the manifestation of particular symptoms. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 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 worklike setting); inability to establish and maintain effective relationships. A rating of 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; 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. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) the Federal Circuit stated 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. It was further noted that § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. The such symptoms as language means for example, and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The appellant and her representative assert that the 50 percent rating for major depressive disorder, recurrent with anxiety disorder not otherwise specified do not accurately depict the severity of the disability. They assert that the Veteran is entitled to an increased evaluation. By way of background, VA received the Veteran’s current claim for an increased rating for a psychiatric disability in October 2011. In an August 2012 rating decision, the RO continued the Veteran’s 50 percent disability rating and the Veteran properly perfected the appeal. Within the one year prior to the Veteran’s current claim for an increased rating for his psychological disability, the Veteran was afforded a VA psychiatric examination in September 2011. After a complete review of the case file and an in-person examination, the VA examiner indicated that the Veteran’s level of occupational and social impairment was best summarized by, “occupational and social impairment with reduced reliability and productivity.” Symptoms included depressed mood, chronic sleep impairment, anxiety, isolation, withdraw, forgetfulness, low energy, and irritability. During the examination, the Veteran was clean, well groomed, and neatly and casually dressed. The Veteran was completely oriented. His mood was described as sad, affect constricted, but attitude cooperative. His speech pattern was unremarkable. His thought content and progression was unimpaired. Gross concentration and memory were found to be adequate. While the Veteran’s insight was limited his judgement was intact, there was no evidence of perceptual disturbances, thought disorder, or hallucinations. The Veteran denied suicidal and homicidal ideation. The examiner indicated that the Veteran had an inability to establish and maintain effective relationships, however, the examiner also noted that the Veteran had an ongoing 43-year relationship with his current wife. The Veteran reported that he did not have a relationship with his two grown children or his grandchildren. The examiner noted impaired impulse control, but stated this symptom was controlled with medication. No periods of violence were noted. Finally, the examiner noted difficulty in adapting to stressful circumstances, including a work or work like setting. The Veteran was afforded an additional VA psychiatric examination in August 2013. After a review of the Veteran’s lay statements, military and VA treatment records, and an in-person examination, the VA examiner indicated that the Veteran’s level of occupational and social impairment was best summarized by, “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” Symptoms included depressed mood, chronic sleep impairment, anxiety, isolation, withdraw, forgetfulness, low energy, disturbances of mood, difficulty in establishing and maintaining effective work and social relationships, and irritability. The Veteran’s ability to understand and follow instructions was intact, as was his ability to retain instructions as well as sustain concentration to perform simple tasks. However, the Veteran’s ability to sustain concentration to task persistence and pace was considered markedly impaired. His ability to respond appropriately to coworkers, supervisors, or the general public was noted to be moderately to markedly impaired. The Veteran’s ability to respond appropriately to changes in the work setting was considered moderately to markedly impaired. The examiner also indicated that “testing indicat[ed] possible over reporting which may be a factor in present in such a way as to increase compensation.” During the period on appeal, the VA treatment records show the Veteran intermittently complained of nightmares, depressed mood, and anxiety. There was never any indication of suicidal or homicidal ideation, nor were there ever behavioral indications of paranoia, delusions, or hallucinations during appointments. He was always noted to be cooperative was oriented throughout the period on appeal. An August 2013 VA treatment record found the Veteran to have thoughts of self-harm after a fight with his wife, however, the Veteran again denied any suicidal ideation. The Veteran contends that he is entitled to an evaluation in excess of 50 percent for major depressive disorder. Major depressive disorder is currently rated at 50 percent under Diagnostic Code (DC) 9434, 38 C.F.R. § 4.130. This was based upon occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The weight of competent lay and medical evidence indicates that a higher evaluation is not warranted. A higher evaluation is not warranted unless 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 worklike setting); inability to establish and maintain effective relationships. The Board finds that the records describe a consistent picture of symptomatology associated with the Veteran’s major depressive disorder. The most probative evidence is the results of the September 2011 and August 2013 VA examinations. The Board finds that given the medical and lay evidence of record, the Veteran’s service-connected major depressive disorder does not more closely approximate an increased disability rating. The Veteran claims he has experienced chronic sleep impairment, anxiety, irritability, and depressed mood. See June 2011 Statement in Support of Claim. The findings of the two above-mentioned VA examination are largely consistent with the Veteran’s own testimony and contentions, and show, at most, occupational and social impairment with reduced reliability and productivity. Therefore, the Board finds that given the Veteran’s entire disability picture, major depressive disorder does not more closely approximated a disability rating in excess of 50 percent. The Veteran’s symptoms are not of the severity, frequency, and duration to warrant a 70 percent rating. There is no question that the Veteran has recurrent nightmares. He has further been noted to have difficulty with interrupted sleep because of nightmares, and has been found on objective examinations to have feelings of depression. He has been reported to be anxious at times. Although he has exhibited these obvious manifestations of his major depressive disorder, the record simply does not reflect the suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, a severe enough level of impaired impulse control (such as irritability, with periods of violence), spatial disorientation, neglect of personal appearance and hygiene, a severe enough level of difficulty in adapting to stressful circumstances (including work or work-like setting), and/or an inability to establish and maintain effective relationships that would support a rating in excess of 50 percent under Diagnostic Code 9434. Specifically, there is no documentation, clinical or otherwise, of suicidal ideation, homicidal ideation, or obsessional rituals. The Veteran has never been described as being a danger to himself or others. He had no suicidal or homicidal thoughts upon examination in October 2011 or August 2013. While a VA treatment note from August 2013 recorded that the Veteran had some acute thoughts of self-harm after a fight with his wife, the Veteran specifically denied suicidal ideation and stated: “it’s a sin, won’t do it.” Additionally, the August 2013 VA note author did not indicate any finding that the Veteran was a threat to himself. In the clinical settings, the Veteran was able to effectively participate during his appointments. For example, VA outpatient psychotherapy records described the Veteran as alert and oriented, with no psychotic thought processes. There has been no evidence of disorganized thinking. Without exception, the Veteran has never been described as neglectful of his personal appearance and hygiene. In September 2011, he was noted to be well groomed and dressed appropriately. While, the Veteran has experienced some depression and anxiety, near continuous panic has never been noted, clinically or otherwise. On the other hand, although the Veteran’s mood was described in VA treatment records as depressed and anxious, his depression has never been shown to affect his ability to function independently, appropriately and effectively. In explanation, the record shows that he has effectively maintained a continuous schedule of medical appointments in the treatment of his various disabilities, and has functioned appropriately during those appointments. Regarding intermittently illogical, obscure, or irrelevant speech, it is noteworthy that neither the VA C&P examiners nor the VA treatment providers ever indicated any difficulty in comprehending the Veteran. There is no documentation of difficulty therewith being attributed to his major depressive disorder, and he appears to have behaved appropriately during each appointment. Although the Veteran may have some difficulty in establishing and maintaining effective work and social relationships, as indicated in the medical record and suggested by the fact that the Veteran did not have friends or a relationship with his grown children or siblings, there is no demonstration of a complete inability to establish or maintain effective relationships. Significantly, while the Board acknowledges that the September 2011 VA examiner recorded that the Veteran displayed an inability to establish or maintain effective relationships, the Veteran was also noted to have an ongoing relationship with his wife for over 40 years. Additionally, while the August 2013 VA examiner described the Veteran’s psychiatric disability as resulting in “occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood,” the Board is reminded that the determination of the level of occupational impairment is ultimately made by the Board based on all available evidence. Consequently, for the reasons detailed above, the criteria for establishing entitlement to a 70 percent rating are not shown by the evidence. Even more clearly, a rating in excess of 70 percent is not warranted. The Veteran does not have the symptoms required for a 100 percent rating, such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, memory loss for names of close relatives or his own name, and intermittent inability to perform basic minimal hygiene. In sum, there is insufficient evidence that the Veteran’s symptoms are of the severity and frequency to cause the level of occupational and social impairment associated with a higher disability rating than the current 50 percent evaluation. Mauerhan, 16 Vet. App. 436, 442 (2002). The current 50 percent rating contemplates such occupational and social impairment. The medical record in this case substantiates no more than this level of psychiatric impairment. While not dispositive, most of the symptoms listed in the rating criteria for a 70 percent rating are absent in this case and the psychiatric disability picture more nearly approximates the criteria for a 50 percent rating, than a 70 percent rating. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). We have also considered 38 C.F.R. § 4.7. The weight of the evidence, however, is against an increase. Accordingly, the Board finds that the Veteran has been most appropriately evaluated at his current rating and that the preponderance of the evidence is against a rating in excess of 50 percent. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TIDU is remanded. As the Veteran, prior to his death, raised the issue of TDIU in his October 2011 Application for an Increased Compensation Based on Unemployability, and the RO has yet to address the claim, the issue is remanded for initial evidentiary development and adjudication. Rice v. Shinseki, 22 Vet. App. 447 (2009). The matters are REMANDED for the following action: 1. The RO must ask the appellant for the names and addresses for all employers for whom the Veteran worked since service. Then the AOJ must ask each employer/former employer for copies of the Veteran's employment records, including, but not limited to, employment applications, attendance records, reasons for any absences, medical records and the reports of any pre-employment examinations; job descriptions; reports of job training; reports of job performance; reports of duty limitations or job changes and the reasons for such limitations or changes; reports of workman's compensation claims or claims for other disability benefits; reports of vocational rehabilitation or job retraining; counseling statements; reports of union involvement; and reports of termination and any associated severance pay. If the employer/former employers do not have such documents, request that the employer/former employers provide a statement on business letterhead stationary addressing the foregoing concerns. The RO must also request that the appellant provide any employment records in her possession which addresses the foregoing concerns. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. Efforts to obtain records of the Veteran’s employment with any federal agency must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each Federal department or agency from whom they are sought. If records of the Veteran’s employment with a private employer are unavailable, notify the Veteran of that fact in accordance with the provisions of 38 U.S.C. § 5103A (b); 38 C.F.R. § 3.159 (e). 2. Once the foregoing development is complete, the RO should adjudicate the issue of entitlement to TDIU. If the benefits sought on appeal are not granted, the appellant and her attorney must be furnished a SSOC and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.