Citation Nr: 21007492 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 10-43 501 DATE: February 9, 2021 ORDER Effective January 29, 2009, a rating of 30 percent, but no higher, is granted for the Veteran’s service-connected depressive disorder. Prior to December 11, 2012, a rating in excess of 30 percent for the Veteran’s service-connected depressive disorder, is denied. Prior to December 11, 2012, a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Effective January 29, 2009, the Veteran’s depressive disorder was manifested by 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, and a blunted/anxious affect. 2. Prior to December 11, 2012, the Veteran’s depressive disorder was not manifested by 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; and difficulty in establishing and maintaining effective work and social relationships. 3. Prior to December 11, 2012, the Veteran’s service-connected disabilities did not preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Effective January 29, 2009, the criteria for entitlement to a disability evaluation of 30 percent, for the Veteran’s service-connected depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. Prior to December 11, 2012, the criteria for entitlement to a disability evaluation in excess of 30 percent for the Veteran’s service-connected depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 3. Prior to December 11, 2012, the criteria for entitlement to a total disability rating due to service-connected disabilities had not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1961 to May 1966 and April 1968 to December 1982. He died in February 2013. The appellant has been substituted for the Veteran. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in January 2020 for further development. The July 2009 rating decision granted service connection for a depressive disorder and assigned a 10 percent rating effective January 29, 2009 (the date of receipt of the claim). The RO issued a January 2013 rating decision in which it increased the rating to 30 percent effective October 25, 2010, and increased the rating to 100 percent effective December 11, 2012. Because the increases did not date back to the date of the claim, there are multiple time periods to consider. The 100 percent rating is the maximum allowable rating. Consequently, the time period after December 11, 2012, is not under the Board’s jurisdiction. Increased Rating The Veteran’s service-connected depressive disorder been rated by the RO under the provisions of Diagnostic Code 9434. Under this regulatory provision, a 10 percent rating is warranted when the Veteran experiences occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 30 percent disability rating is warranted when there is 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). Id. A 50 percent is warranted if the Veteran experiences 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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 work like setting); inability to establish and maintain effective relationships. Id. 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; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. Id. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Effective January 29, 2009, a rating of 30 percent, but no higher, is granted. The Veteran underwent a VA examination in April 2009. His chief complaint was that he had a hard time getting motivated. He reported that he got eight hours of sleep per night. He did not complain of energy level being diminished. He reported that after returning from Vietnam, he had some disturbing dreams or nightmares related to Vietnam. He did not describe any current nightmares. He did not report any other persistent re-experiencing of active duty stressors. He reported (and his wife corroborated) irritability and frustration which they linked to the Veteran’s hearing loss difficulties. He denied feelings of hopelessness, episodes of crying, and suicidal ideation. He reported that his appetite was okay, except to the extent that it was affected by his diabetes. His weight (230 pounds) was above his self-reported ideal weight of 180 pounds. He reported that he no longer had any interest in a sexual relationship. The Veteran reported that his parents were both deceased. He had two sisters who were still living. He stated that he had a good relationship with them when he saw them. He had been married to his wife for 46 years, although the examiner noted that the medical records indicated that Veteran had left the marriage five times due to anger and irritability. He stated that the marriage was currently “okay I guess.” His wife’s assessment was the same. She stated that it was better now than in the past. The Veteran reported that he had two adult children and he got along with them pretty well. He also reported that he had one child who died in 1973. He reported a significant period of depression following the death of this child. Regarding his occupation, the Veteran reported that he worked in a warehouse as a warehouse delivery driver. He worked at that job for about 10 years. He stated that he got laid off from work following surgery and that this was a source of disappointment to him. The examiner noted that a VA Form 21-8940 reflected that the Veteran last worked in September 2007. It reflected that the Veteran lost five months from work due to diabetes mellitus, neuropathy, and hearing loss. There was no indication that he lost time from work due to a mental health problem. The Veteran stated that he was retired. Consequently, there was no lost time from work to report from an existing job. Regarding activities of daily living, the Veteran reported that he managed his own personal hygiene and grooming. His appearance at the examination was clean and casual. He stated that he is capable of doing routine activities of daily living. He reported a loss of interest in activities. He stated that he watches television and keeps the yard clean. He continues to participate in some social activity with his wife. The examiner found that overall inappropriate behavior was not a significant problem for the Veteran. Upon examination, the Veteran’s immediate, recent, and remote memories were satisfactory. He was oriented in all spheres. His speech was normal as to rate and volume. Thought process production was spontaneous and satisfactory. Continuity of thought was goal-directed and relevant. Thought content contained no suicidal or homicidal ideation. There were no delusions, ideas of reference or feelings of unreality. His abstract ability and concentration were both satisfactory His mood as evaluated by the examiner was depressed and his range of affect restricted. He was alert, responsive, and cooperative. His judgment was satisfactory. His insight was fair. VA outpatient treatment reports dated April 2009 to April 2010 consistently reflect symptoms described as “moderate.” He was consistently alert and oriented x 4. His thought process and content were normal. His insight and judgment were adequate. Each treatment report noted that the Veteran’s affect was either “blunted” or “anxious.” Effective January 29, 2009, the RO has assigned a rating of 10 percent. In order to warrant an increased rating, the Veteran’s depression must be manifested by 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). The evidence reflects that the Veteran generally functioned satisfactorily. He did not lose any time from work and had retired. He did have social impairment in that he had a loss of interest in activities. There were no findings of suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). He did have a depressed mood, and one treatment report described his affect as “anxious.” The Board notes that when the RO issued its January 2013 rating decision, in which it granted a 30 percent rating, it stated that the rating was based on the Veteran’s flattened affect, depressed mood, and the fact that a mental condition has been formally diagnosed. These same symptoms are reflected in the outpatient treatment reports dated April 2009 to April 2010 (except that instead of a “flattened” affect, his affect is described as “blunted” or “anxious”). The Board finds that the criteria for a 30 percent rating have been met effective January 29, 2009. Prior to December 11, 2012, a rating in excess of 30 percent for the Veteran’s service-connected depressive disorder, is denied. In order to warrant a rating in excess of 30 percent, the Veteran’s depressive disorder must be manifested by experiences 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; and difficulty in establishing and maintaining effective work and social relationships. Outpatient treatment records include a December 2010 cognitive test administered by Banner Arizona Medical Clinic. The Veteran’s mood was described as “depressed.” His affect was flat. He acknowledged feeling unhappy and having social withdrawal, reduced interest, and feelings of helplessness and hopelessness. He denied any high-risk factors. He was alert and generally oriented. His thought process was internally consistent, though concrete. Speech was fluent and monotonous in terms of amplitude, volume, and emotional prosody. He was able to perform several mental control tasks, but had difficulty performing those requiring sequencing. He recalled none of the three unrelated words after a brief delay. There were no perceptual disturbances noted, nor any bizarre mentation. Mental health treatment reports dated April 2011 and June 2011 continued to reflect moderate symptoms. They were consistent with the reports dated April 2009 to April 2010 (discussed above). A November 2011 treatment report reflected substantially similar symptoms which were once again described as moderate. Mini-Mental State Examinations (MMSE) dated February 2010 and October 2011 reflected mild cognitive impairment. Treatment records from Banner Health Center dated April 2011 to April 2012 reflect complaints of depression, difficulty concentrating, and memory loss; however, in April 2012, the Veteran had depression, anxiety, mental problems, thoughts of suicide, thoughts of violence, frightening visions or sounds, and sense of great danger. The evidence following the Veteran’s April 2009 VA examination fails to reflect a significant increase in symptoms. The Veteran reported memory loss (which was reflected in a December 2010 cognitive impairment test), but his February 2010 and October 2011 MMSE reports reflect only mild cognitive impairment. The records reflect a flattened, blunted, or anxious affect, and mild cognitive impairment in terms of memory loss. They do not reflect circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory to the extent that he has retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking. The Veteran was retired and therefore it is difficult to assess his occupational impairment; however, the April 2009 examiner noted that the Veteran did not miss any work due to mental health issues, and the outpatient treatment reports fail to reflect a significant increase in symptoms since then. Likewise, in term of social impairment, at the April 2009 VA examination, the Veteran reported that he had an “okay” relationship with his wife, and he continued to have some social activity with her. He also had good relationships with his sisters. There is nothing in the outpatient treatment records to indicate that social impairment has decreased since that time. The Board finds that the preponderance of the evidence (prior to December 11, 2012) is against finding in favor of a rating in excess of 30 percent. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 30 percent for depressive disorder, prior to December 11, 2012, must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Prior to December 11, 2012, a TDIU is denied. In order to establish a total rating based upon individual unemployability due to service-connected disability, there must be an impairment such that the Veteran is unable to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran’s schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Thus, the Board must evaluate whether there are circumstances, apart from any nonservice-connected conditions and advancing age, which would justify a total rating based on unemployability. A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See Parker v. Brown, 7 Vet. App. 116, 118 (1994). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable 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). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341 (a), 4.19 (2016). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. As noted above, the RO assigned the Veteran a 100 percent rating for depressive disorder effective December 11, 2012. Additionally, the RO issued a March 2012 rating decision in which it granted a 100 percent rating for left side breast cancer effective June 23, 2010. A 100 percent schedular rating is a higher benefit than TDIU; thus, in general, when a 100 percent rating has been granted, a TDIU claim is moot. This is not universally true, however, as recognized by the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In that case, it was held that where TDIU could be granted based on a disability other than the one rated at 100 percent disabling, there would be no duplicate counting of disabilities for both the TDIU and the schedular total rating to remain in effect. So, in cases where there are other significant service-connected disabilities, the Board needs to ask the question as to whether those non-totally rated disabilities, standing alone, preclude employment. Put another way, if the Veteran had not been rated at 100 percent for left side breast cancer, would the remaining service-connected disabilities preclude substantially gainful employment? Here, prior to December 11, 2012, the Veteran’s service-connected disabilities included depressive disorder (associated with diabetes mellitus), evaluated as 30 percent disabling; type II diabetes mellitus, evaluated as 20 percent disabling; bilateral hearing loss, evaluated as 10 percent disabling; peripheral neuropathy of the right lower extremity (associated with diabetes mellitus), evaluated as 10 percent disabling; peripheral neuropathy of the left lower extremity (associated with diabetes mellitus), evaluated as 10 percent disabling; residuals of a fractured left (minor) wrist, evaluated as 10 percent disabling; residuals of a torn right knee meniscus, evaluated as 10 percent disabling; osteoarthritis of the lumbar spine, evaluated as 10 percent disabling; and erectile dysfunction, evaluated as 0 percent disabling. His combined rating was therefore 70 percent. See 38 C.F.R. § 4.25. Thus, because the diabetes mellitus and associated disabilities are over 40 percent disabling, the Veteran meets the schedular requirements for a total disability rating based on individual unemployability due to service-connected disabilities under 38 C.F.R. § 4.16(a). The Board, however, must still determine whether the Veteran’s service-connected disabilities resulted in impairment so severe that he was unable to follow a substantially gainful occupation. The Board emphasizes that a total rating based on individual unemployability is limited to consideration of service-connected disabilities. Following a full and thorough review of the evidence of record, the Board concludes that the preponderance of the evidence is against a TDIU prior to December 11, 2012. The evidence does not demonstrate that, prior to December 11, 2012, the Veteran was unable to secure or follow a substantially gainful occupation solely by reason of his service-connected disabilities. Prior to December 11, 2012, the Veteran’s most predominant disability was his depressive disorder. At his April 2009 VA examination, the Veteran stated that he was capable of doing routine activities of daily living. The examiner assessed the Veteran as having mild symptoms. In November 2009, the VA examiner submitted an addendum opinion in which he addressed treatment reports from June 2009 through September 2009. He noted that the outpatient examiners failed to find that the Veteran was unemployable due to his mental health. The examiner opined that the Veteran’s depressive disorder would not preclude employment. He noted that the Veteran would be able to perform work in a loosely supervised situation requiring little interaction with the public. The Veteran’s next most prominent disability was his diabetes mellitus and peripheral neuropathy associated with it. He underwent a VA examination addressing these symptoms in April 2009. His diabetes mellitus was well controlled, and his peripheral neuropathy was substantially improved with no current evidence of sensory deficit to monofilament or light touch. The examiner submitted a November 2009 addendum opinion in which he stated that the Veteran would not be impaired because of his diabetes or peripheral neuropathy. He stated that he would have minor limitations in work that required lifting (due to his service-connected left wrist disability) and prolonged walking on uneven surfaces (due to his service-connected knee disability). Thus, prior to December 11, 2012, the evidence of record does not demonstrate that the Veteran’s service-connected disabilities rendered him unable to obtain and retain substantially gainful employment—the evidence is not in a state of equipoise on that question. As such, a TDIU prior to December 11, 2012, is denied. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Prem, 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.