Citation Nr: 21015446 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-05 150 DATE: March 17, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for unspecified depressive disorder with unspecified trauma and stressor related disorder with alcohol use disorder (unspecified depressive disorder) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s unspecified depressive disorder symptoms did not more closely approximate total occupational and social impairment. 2. The evidence is at least in equipoise that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 70 percent for unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9499-9434. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to September 1982 and from April 1986 to April 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in August 2019. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In a January 2019 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran’s unspecified depressive disorder with unspecified trauma and stressor related disorder with alcohol use disorder to 70 percent, effective December 7, 2012. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). In this decision, the Board grants entitlement to a TDIU. The AOJ will set an effective date for the grant of entitlement to a TDIU after determining the date on which the Veteran became unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Entitlement to a higher initial rating for depressive disorder The Veteran seeks a higher initial rating for his service-connected unspecified depressive disorder with unspecified trauma and stressor related disorder with alcohol use disorder. The Veteran’s service-connected unspecified depressive disorder is rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9499-9434. The applicable rating period is from December 7, 2012, the effective date for the award of service connection for depressive disorder, through the present. See 38 C.F.R. § 3.400. The Veteran’s unspecified depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434, and the General Rating Formula for Mental Disorders (General Formula). Under the 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). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with no greater than a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with no greater than a 70 percent rating. In relevant part, under the General Formula, a 70 percent rating is assigned when symptoms such as 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; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA treatment records; August 2015, January 2019, and January 2020 VA examinations; December 2017 private examination; and the Veteran’s lay statements show that the Veteran’s unspecified depressive disorder was manifested by symptoms associated with a 70 percent rating, including difficulty adapting to stressful circumstances, including work or a work like setting and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. His unspecified depressive disorder was also manifested by symptoms associated with ratings less than 70 percent, including depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, mild memory loss, and flattened affect. He also had symptoms that are not listed with a specific rating, such as concentration difficulties. The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a rating of no higher than 70 percent. Such symptoms are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. His difficulty concentrating, is similar to disturbances of motivation and mood and impaired abstract thinking which is listed under the 50 percent rating criteria. Neither the Veteran nor his representative has raised any other issues with regard to the rating for unspecified depressive disorder, nor have any other such issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s unspecified depressive disorder symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent rating are not met and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. “Substantially gainful employment” is defined as work that is more than marginal and that permits the individual to earn a living wage. See Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. “Substantially gainful employment” contains economic and noneconomic components. The economic component means “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,” and the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). During the period on appeal, the Veteran is service connected for unspecified depressive disorder, rated as 70 percent disabling; residuals, fractured left wrist, fifth metacarpal, rated as 10 percent disabling; hepatitis C, rated as 10 percent disabling, prior to April 17, 2014, 20 percent disabling from April 17, 2014, through March 31, 2021, and noncompensable from April 1, 2021; and scar upper back and Sjorgen’s syndrome, rated as noncompensable. The regulatory percentage requirements for a TDIU were met for the entire period as a result of a single service-connected disability ratable at 60 percent or higher. The Board finds that the criteria for entitlement to a TDIU have been met for the following reasons. A February 2020 VA examiner opined that the Veteran’s service-connected left wrist disability would interfere with his ability to grip and lift objects, such as lifting, driving, writing, and holding objects. Additionally, the VA examiner noted that the Veteran’s occupational history and skill set has been in the restaurant business and that he would need to participate in vocational training to continue in his chosen field. The VA examiner further noted that due to his service-connected disabilities, the Veteran does not have the stamina, drive, and/or motivation to do so. Additionally, the VA examiner noted that the Veteran would not be able to keep up with the general pace and demands of the fast pace of a cook and he may pose a threat to himself or fellow employees due to frequent loss of balance. In October 2020, the Veteran was provided a vocational assessment by a certified vocational evaluator. The vocational evaluator noted that the Veteran’s unspecified depressive disorder symptoms, including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships represent a significant negative barrier to substantial gainful employment. The evaluator further noted that these symptoms contribute to the Veteran’s inability to develop appropriate relationships with coworkers, supervisors and the general public and interfere with his ability to maintain a regular and predictable schedule. The evaluator noted that the Veteran’s service-connected hepatitis C, which results in chronic extreme fatigue, causes disturbances in concentration and completion of tasks and unscheduled absences. As such, the evaluator opined that the Veteran is unable to maintain substantially gainful employment on a regular consistent basis. The Board cannot accept the vocational evaluator’s conclusion that the Veteran is unable to maintain substantially gainful employment because the responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner or subject matter expert. However, the Board does accept the evaluator’s conclusion that the Veteran’s unspecified depressive disorder and hepatitis C would interfere with the Veteran’s ability to maintain a regular and consistent work schedule as probative evidence as to the impact the Veteran’s service-connected functional limitations have on his ability to secure or follow a substantially gainful occupation, as the vocational evaluator has specialized knowledge and expertise in such matters. The Board finds that, considering the lay and medical evidence of record as a whole, the Veteran’s service-connected disabilities render him unable to secure or follow a substantial gainful occupation. As such, the evidence is at least in equipoise as to whether the Veteran is entitled to a TDIU. Therefore, entitlement to a TDIU is warranted. 38 U.S.C. § 5107 (b); see also Gilbert, 1 Vet. App. 49. The Board again notes that the AOJ will set an effective date for the award of a TDIU. This preserves the Veteran’s right to appeal the effective date awarded by the AOJ. See DAV v. Secretary of Veterans Affairs, 327 F.3d. 1339 (Fed. Cir. 2003). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.