Citation Nr: 21013666 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-22 313 DATE: March 10, 2021 ORDER Entitlement to a rating in excess of 70 percent for unspecified depressive disorder with anxious distress is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s unspecified depressive disorder with anxious distress has not been shown to be productive of total social and occupational impairment. 2. The Veteran’s service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for unspecified depressive disorder with anxious distress have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9411. 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, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1967 to November 1969. 1. Entitlement to a rating in excess of 70 percent for unspecified depressive disorder with anxious distress Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed a claim for an increased rating for unspecified depressive disorder on June 29, 2018. Therefore, the period on appeal begins on June 29, 2017. The Veteran’s unspecified depressive disorder has been evaluated under DC 9435. 38 C.F.R. § 4.130. The General Rating Formula for Mental Disorders provides that 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 is rated 70 percent disabling. 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; and memory loss for names of close relatives, own occupation, or own name is rated a maximum 100 percent disabling. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vasquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Having reviewed all the evidence of record, the Board finds that it does not support a finding of total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran was seen in August 2017 after a positive screening for suicide. The Veteran reported stressors including arguments with his wife and his “physical problems hitting him all at once.” The Veteran noted that he was a “10-hour work guy” who had retired three times. Prior to the age of 62 the Veteran stated he lived and worked in Jacksonville, FL, but business had “dried up”. He then started a farm in Georgia but eventually moved back to Florida to be closer to his wife’s family. The Veteran reported intermittent thoughts of dying but no plans to hurt himself. Subsequent, private and VA treatment records consistently document passive suicidal ideations without plan or intent. The Veteran underwent both group and individual therapy at the VA. Treatment records from August 2017 to January 2018 indicate the Veteran had a good relationship with his wife of 50 years. Though the couple had various disagreements, the Veteran reported that he loves his wife and that she reciprocates and cares for him too. The Veteran also reported a continued relationship with his mother noting that he visited her weekly in the nursing home. Further, the Veteran reported a good relationship with his son whom he values. He noted that his son was protective of him. In November 2017, the Veteran’s private primary care physician provided a letter stating, in toto, that the Veteran was “unable to maintain gainful employment due to his diagnosis of PTSD.” In August 2018, a VA psychologist provided an opinion on the current nature and severity of the Veteran’s depressive disorder. The Veteran reported that he was becoming increasingly emotional and easily moved to tears. He endorsed passive suicidal ideations and related that he felt depressed because he could not accomplish anything. The Veteran described good relationships with his wife, mother and son. He reported stressors related to his grandson’s stealing and the declining health of his mother and wife. He also reported financial stressors including losing money in the 2008 crash. The psychologist noted symptoms including depressed mood, anxiety, mild memory loss, circumstantial or stereotyped speech, and difficulty in adapting to stressful circumstances including work or a worklike setting. The psychologist assessed overall impairment as causing occupational and social impairment with reduced reliability and productivity. In April 2019, the Veteran was seen for a neuropsychological evaluation after he reported new onset of auditory and visual hallucinations, increased irritability and inability to control his emotional responses. The Veteran was diagnosed with a separate neurocognitive disorder. In August 2020, the Veteran underwent a private vocational assessment. The consultant opined that the Veteran has been unable to secure and follow substantially gainful employment in any occupation since at least May 2014 as the result of his service-connected depressive disorder, CAD, and tinnitus. In regard to his unspecified depressive disorder, the Veteran reported chronic psychiatric symptoms to include: depressed mood, anxiety with panic attacks, irritability with angry outbursts, impaired motivation, profound lack of energy and stamina, the inability to maintain appropriate social behavior, profound isolation, forgetfulness, mood swings, suicidal ideation, racing intrusive thoughts, and the inability to concentrate. The Veteran’s wife reported that she attended to most of his daily living activities. The Veteran’s wife also reported that he no longer had a good relationship with their son and family members. The Veteran explained that he did not like being around people anymore because he got irritated. The Veteran has provided competent and credible lay statements detailing the symptoms of his psychiatric disorder. He notes that his inability to regulate his emotions, his lack of patience, his inability to sleep, his lack of motivation, his inability to focus and his difficulty communicating all impact his employment and social life. Specifically, the Veteran noted that there were days he knew his staff did not want to work with him so he would go off on his own to work away from them. Additionally, he would isolate himself to avoid becoming easily angered and upset. Based on the evidence, total occupational and social impairment has not been shown. The Veteran has maintained relationships with his mother and wife. Moreover, although the Veteran reported difficulty working with others, he was able to implement workarounds in his self-employment. By the Veteran’s own account, he retired primarily due to his wife’s desire to relocate and his inability to meet the physical demands of running his farm. While the record indicates that the Veteran has demonstrated some of the listed symptoms associated with a 100 percent rating, they are not of such severity, frequency or duration as to equate with total social and occupational impairment, particularly given the overall disability picture which demonstrates the ability to function in a work and social setting. The Board acknowledges the November 2017 opinion of the Veteran’s PCP. However, the opinion is of limited probative value as it contains no rationale. Additionally, the August 2020 vocational assessment supports that the Veteran’s inability to work was due to multiple service-connected disabilities rather than his psychiatric disorder in isolation. In this regard, neither the lay or medical evidence of record suggests that the Veteran’s unspecified depressive disorder alone resulted in total occupational and social impairment. Thus, the Veteran has not demonstrated symptomatology equivalent to the level of severity required for a 100 percent rating. Accordingly, the preponderance of evidence is against the claim and the appeal for an initial rating in excess of 70 percent for major depressive disorder must be denied. 38 U.S.C. § 5107. 2. Entitlement to a TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1555; 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). 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 non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2014); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. at 529; VAOPGCPREC 7591 (Dec. 27, 1991), 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § 4.16 (a), provide for a TDIU when, due to a service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16 (b). The Veteran contends that his service-connected coronary artery disease (CAD), hearing loss, and unspecified depressive disorder render him unable to secure or maintain substantially gainful employment. Although the Veteran submitted an express claim for an increased evaluation based on unemployability contending that his service-connected disabilities precluded him from working, the record shows that the Veteran’s TDIU claim was raised in the context of his June 29, 2018 increased rating claim for unspecified depressive disorder. See Rice v. Shinseki, 22 Vet. App. 447 (2009). For the entire period on appeal, the Veteran was in receipt of a 70 percent rating for unspecified depressive disorder, a 10 percent rating for residuals, right femoral herniorrhaphy, a 10 percent for tinnitus, a 10 percent rating for bilateral hearing loss, and a non-compensable rating for degenerative joint disease of the right knee. Prior to October 7, 2020, the Veteran’s CAD was rated 10 percent disabling. From October 7, 2020, the Veteran’s CAD was rated 60 percent disabling. In the case at hand, the Veteran met the criteria for a TDIU on a schedular basis for the entire period on appeal, as he was assigned a rating in excess of 60 percent for a single disability. 38 C.F.R. § 4.16(a). The record reflects that the Veteran completed some high school. See November 2019 VA Form 21-8940. The Veteran indicated that he last worked in July 2015 as a self-employed blueberry farmer. Id. He avers that he has been unable to work due to service-connected disability since that time. The record reveals the Veteran’s unspecified depressive disorder causes depressed mood, anxiety with panic attacks, irritability with angry outbursts, impaired motivation, the inability to maintain appropriate social behavior, isolation, forgetfulness, mood swings, suicidal ideation, racing intrusive thoughts, and the inability to concentrate. By the Veteran’s reports these symptoms impacted his work significantly in that they prohibited him from interacting with his staff during his period of self-employment. However, when asked why he retired, the Veteran consistently reported physical symptoms relating to his CAD. A review of the Veteran’s cardiac treatment records shows complaints of dizziness, dyspnea and fatigue. The Veteran underwent a VA examination for his CAD in October 2020. At the examination, the Veteran reported having heart problems for the last 5-10 years. He also reported experiencing shortness of breath, fatigue and chest pain when being active. The examiner noted that continuous medication was required to control the Veteran’s CAD. The examiner concluded that the Veteran’s CAD makes light or mild activity difficult. A workload of greater than 3 METs but not greater than 5 METs was found to result in dyspnea, fatigue and angina. Since the Veteran’s retirement, his hearing acuity has also decreased significantly. Private and VA treatment records indicate that the Veteran’s wife attends most appointments with him and repeats instructions to him. The Veteran was afforded a VA audiological examination in January 2020. The examination revealed an increase in the severity of the Veteran’s hearing loss. The Veteran reported difficulty hearing and understanding speech especially with soft spoken voices or at a distance. A highly probative August 2020 private vocational assessment deemed the Veteran unable to secure and follow substantially gainful employment in any occupation regardless of skill or exertional level as a result of his service-connected depressive disorder, CAD, and tinnitus since at least May 2014. The consultant also found the Veteran has been further precluded from gainful employment due to his service-connected bilateral hearing loss since at least September 2019. After thorough review of the record and an interview with the Veteran, the consultant found that the Veteran’s ability to physically exert himself was severely limited due to his CAD. Additionally, his ability to work for and with others was severely limited due to his depressive disorder. The consultant specifically noted that the Veteran’s acquired skills were industry specific and not transferable to alternative work, especially most sedentary occupations. Additionally, the consultant noted that the Veteran’s education level did not provide a vocational advantage in the competitive workforce. After reviewing the evidence discussed above, the Board finds that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his unspecified depressive disorder and CAD for the entire period on appeal. More recently, the Veteran’s hearing loss has further diminished his ability to obtain or maintain employment. The Board has considered the Veteran’s functional capacity and work experience in determining that no type of employment would appear to have been appropriate for the Veteran. See 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). (Continued on the next page) The Board finds that the Veteran’s service-connected unspecified depressive disorder, bilateral hearing loss, and CAD render him unable to secure or follow a substantially gainful occupation, and entitlement to a TDIU is warranted for the entire appeal period. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.