Citation Nr: 21021462 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 17-27 487 DATE: April 13, 2021 ORDER From February 9, 2016 to June 1, 2020, a higher initial disability rating of 70 percent, but no higher, for service-connected major depressive disorder (depression) is granted. REMANDED From February 9, 2016, a total disability rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT From February 9, 2016 to June 1, 2020, the severity, frequency, and duration of the symptoms of the service-connected depression more nearly approximated occupational and social impairment with deficiencies in most areas; it did not produce total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, from February 9, 2016 to June 1, 2020, the criteria for a higher initial disability rating for service-connected depression of 70 percent, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active duty service from April 2008 to August 2008 and from April 2010 to May 2011. The instant case is on appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, granted service connection for depression and established an initial rating of 50 percent. The case has been before the Board of Veterans’ Appeals (Board) previously. In September 2018, the Board remanded the initial rating for depression in order to procure a VA opinion and stated that there were allegations in support of a TDIU that were inextricably intertwined with the rating for depression. The Board finds that the ordered development has occurred and that the claim for service connection for depression can be adjudicated. See Stegall v. West, 11 Vet. App. 268, 271 (1998). For the reasons given below, the claim for TDIU requires additional development and is being remanded to the RO. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326 (a) (2018). The Board finds that the duties to notify and assist have been met. Depression Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings can be assigned at the time an initial disability rating is assigned). The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are “like or similar to” those explicitly listed in the schedular rating criteria. See Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” 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.” Under Diagnostic Code 9434, a 50 percent rating will be assigned 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, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating will be assigned 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. Id. A 100 percent schedular rating contemplates 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. Id. Rating Depression from February 9, 2016 to June 1, 2020 A 50 percent initial disability rating was assigned for the service-connected depression for the rating period beginning February 9, 2016. The Veteran appeals for a higher rating. See, e.g., May 2017 VA Form 9. For reasons explained below, as of June 1, 2020, the depression is rated together with the higher rating for TBI, so cannot be rated separately from June 1, 2020. After a review of all the evidence, lay and medical, the Board finds that, for the initial rating period from February 9, 2016 to June 1, 2020, the severity, frequency, and duration of the symptoms of the service-connected depression more nearly approximated occupational and social impairment with deficiencies in most areas, to warrant a 70 percent disability rating. For this period, the evidence does not show total social and occupational impairment for a 100 percent rating. The disability rating is based on occupational and social impairment as demonstrated through the severity, frequency, and duration of symptomatology. A January 2016 Administrative Note from the Veteran’s treating psychiatrist gives an informative background picture of the depression, including that there were two psychiatric inpatient treatments in December 2015 and January 2016. The Veteran was still symptomatic, with major symptoms including depression, irritability (like or similar to disturbances of motivation and mood), decreased need for sleep (like or similar to chronic sleep impairment), limited impulse control (like or similar to impaired impulse control), and paranoia (like or similar to suspiciousness). In the January 2016 Psychiatric Progress Note (related to inpatient admission), the Veteran reported that he had been anxious and depressed, crying, with poor energy, and had auditory and visual hallucinations. In a January 2016 Social Work Behavioral Health Psychosocial Assessment, the Veteran further elaborated on these auditory and visual hallucinations. In a June 2016 VA examination, the VA examiner noted that in December 2015 there was depressive symptomatology with suicidal ideation with a structured plan, as well as non-specific homicidal ideas with visual and auditory hallucinations present with commands of harming others. The Veteran needed inpatient care due to high-risk lethality. As of the June 2016 VA examination, the Veteran was more stable, with symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The VA treatment notes suggest some improvement in functioning after the hospital admissions, as the Veteran was able to stay out of an inpatient setting. In an August 2016 Psychiatry Note, the Veteran reported that he feels depressed, but less frequently than previously, that he has less tearfulness, that his motivation has improved, and that he continues motivating himself to stay healthy. The psychiatrist noted that some paranoid thoughts persisted but that the Veteran appeared to register that it was part of the illness that he has, but sleep had normalized. The psychiatrist endorsed certain psychotic symptoms, to include paranoid overvalued ideas, suspiciousness, and affect restriction (like or similar to flattened affect). The psychiatrist also noted that the Veteran had certain negative symptoms, to include disregard for self-care (like or similar to neglect of personal appearance and hygiene), needing prompting for hygiene, and decreased ability to manage complex problems. During an August 2016 Caregiver Certification (providing support to the Veteran’s mother in her role as caregiver), the Veteran’s mother reported that when the Veteran was out of control and felt desperate, he expressed ideas of self-harm (i.e. “driving a car off a cliff at high speed”). The record has some conflict as to whether the Veteran had made a suicidal attempt (most records say no history of an attempt, but a December 2018 Psychology Note said that he had an attempt in 2014). That said, the passive suicidal ideation and death wish is still contemplated by a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (finding that the regulation does not distinguish between active and passive suicidal ideation and that the 70 percent rating is the only one that contemplates suicidal ideation). During the Caregiver Certification, the Veteran’s mother stated that the Veteran has a history of psychotic episodes, paranoia, and hypervigilance (like or similar to suspiciousness). The Veteran is reported to be aggressive toward others, although his family is now trained not to react to him, which de-escalates the situation. The mother stated that she tries to avoid interactions with others outside the family to avoid the risk of him losing control. In a June 2017 Psychiatric Progress Note, the Veteran complained that he still continues with mood fluctuations and anxiety. His mother noted that anxiety was really present. The Veteran reported social isolation due to anxiety (like or similar to disturbances of motivation and mood). He had not had auditory or visual hallucinations, did not have clear paranoid delusions, and did not appear to have any perceptual abnormalities. The major symptoms were depression (sadness, irritability, poor concentration, decreased problem-solving capacity, and social isolation) and anxiety (muscular tension and nervousness). There were no mental status examination concerns other than an anxious mood with congruent affect. In an August 2017 Psychiatry Note, the Veteran reported similar symptoms to those previously mentioned. The psychiatrist noted that the Veteran has very poor tolerance to interpersonal stress (like or similar to inability to establish and maintain effective relationships). The Veteran reported some days are spent sad and unmotivated, but less frequently than previously. The psychiatrist stated that it was recommended that the Veteran not work due to his psychiatric condition because he is unable to handle interpersonal stressors (like or similar to difficulty in adapting to stressful circumstances including work or a work-like setting and inability to establish and maintain effective relationships). An April 2018 Psychiatry Note shows that the Veteran reported auditory hallucinations and referenced suicidal ideas. Mood was dysphoric, depressed, and anxious. A December 2018 Psychology Note shows feelings of inability to control anger (like or similar to depressed mood), restlessness, panic-like symptoms, difficulty concentrating, mood swings, sadness, anhedonia (like or similar to disturbances of motivation and mood), and passive death wishes (like or similar to suicidal ideation). During a psychiatry appointment from the same day, the Veteran sated that he was dealing with fluctuations in mood and anxiety symptoms, but reported improvement in terms of relationships, as he had a girlfriend. The symptoms largely remained the same over time, although there was some improvement in symptomatology toward the end of the period on appeal. As of a July 2019 Psychology Note, the Veteran reported that he had been calm, though continued to endorse occasional depressed mood and flashbacks, but was in a relationship, while living with his family, and reported some stability and efficacy in managing his thoughts. In February 2020, the Veteran reported symptoms of depression and anxiety. The evidence has demonstrated a range of mental health symptoms over the duration of the period on appeal, to include depression and anxiety, auditory and visual hallucinations, paranoia and suspiciousness, chronic sleep impairment, suicidal ideation, and difficulty with maintaining effective relationships and handling stressful circumstances. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 70 percent rating is most appropriate for the period on appeal. For this period, the evidence does not show total social and occupational impairment as required for a 100 percent schedular disability rating. Concerning the overall question of occupational impairment, the Veteran’s psychiatrist has explicitly stated that the Veteran is unable to work or hold a steady job. See October 2020 Psychiatry Telephone Encounter Note (Veteran is unable to work); October 2017 Psychiatry Note (Veteran recommended not to work due to psychiatric condition; patient deemed not able to handle interpersonal stressors and routines of a regular work setting). However, the evidence does not show total social impairment. The Board’s grant of a 70 percent rating covers the period from February 9, 2016 to June 1, 2020. As of June 1, 2020, the issue of a separate rating for a psychiatric disability is rendered moot by the traumatic brain injury rating, as there was a stated inability to differentiate the psychiatric symptoms from the traumatic brain injury from June 1, 2020 onward. REASONS FOR REMAND 2. TDIU from February 9, 2016 As detailed above, there is some evidence evidence suggesting inability to work due to the service-connected psychiatric disability, which raises the issue of entitlement to a TDIU. The TDIU issue was previously remanded as being inextricably intertwined with the depression rating issue. The issue of entitlement to a TDIU does not appear to have been further developed on remand. Namely, the claims file does not contain a completed VA Form 21-8940 (TDIU Claim Form). Obtaining a complete TDIU Claim Form would help to develop specific information necessary to decide the TDIU issue. The TDIU issue is REMANDED for the following action: 1. Provide the Veteran with a copy of the VA Form 21-8940 (TDIU Claim Form) with instructions for submission. The Veteran is to complete all information requested by this form. 2. Readjudicate the claim for a TDIU. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.