Citation Nr: 21021651 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 11-20 016 DATE: April 13, 2021 ORDER Entitlement to a disability rating of 50 percent, but not higher, prior to July 24, 2014, is granted; a rating in excess of 50 percent thereafter is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s depression manifested as occupational and social impairment with reduced reliability and productivity. 2. The Veteran’s service-connected disabilities preclude him from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but not higher, for the Veteran’s depressive disorder have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9434. 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, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from April 1971 to April 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In an October 2014 rating decision, the Veteran was assigned a 50 percent rating for his service-connected depressive disorder, effective July 24, 2014. In a December 2017 decision, the Board denied the Veteran’s request for a rating in excess of 30 percent prior to July 24, 2014, and in excess of 50 percent thereafter. He appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 memorandum decision, the Court vacated the Board’s December 2017 decision and remanded the matter to the Board for readjudication. The Court found the Board failed to provide adequate reasons and bases for its denial of the Veteran’s claim. Thus, the Veteran’s claim was sent back to the Board. In October 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a new VA examination for his depression. The Veteran received a new VA examination in May 2020, and the Board finds the examination provided sufficient information to determine the severity of the Veteran’s disability. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. 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 Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently assigned a 30 percent evaluation for depressive disorder prior to July 24, 2014, and a 50 percent evaluation from July 24, 2014, pursuant to Diagnostic Code 9434. 38 C.F.R. § 4.130. Depression is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Formula for Mental Disorders (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 use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The 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. Id. Under Diagnostic Code, 9434, a 30 percent rating is warranted when the psychiatric disorder results in 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events). A 50 percent rating is warranted when the psychiatric disorder results in 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 when the psychiatric disorder results in 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when the psychiatric disorder results in 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. The Veteran received a VA examination in July 2011. He reported feeling depressed, restless, and anxious. He had issues with sleeping but attributed that in part to his work schedule; he worked from 10 pm to 6 am. He had no issues with performing the tasks of daily living such as maintaining a hygiene routine, feeding himself, driving, or taking his medication. He was responsible for the lawn maintenance, light snow removal, and small home repairs. The Veteran reported that he sometimes gets along with his wife, but sometimes does not. He also reported that he had worked at the post office since 1989, but found it stressful due to recent changes, including a change in supervision. The Veteran indicated that he enjoyed riding bikes and used to enjoy going to the park, but was limited by his Irritable Bowel Syndrome (IBS) condition. The examiner concluded that the Veteran was still functional, still worked full-time competitively, had an intact marriage, and continues to be involved with his family. The examiner asserted that functionally, the Veteran did not appear to be more than mildly impaired. The Veteran’s next VA examination was in November 2012. He continued to report many of the same symptoms. He maintained a stable relationship with his wife and other family members. While he reported he did not have a substantial social outlet, that was not abnormal for him. He attended church regularly and socialized with the members. The Veteran also reported that he had retired from his job in December 2011, and denied having any problems meeting the demands of his work. He did report that he found the work stressful. He reported issues with anxiety, irritability, sadness, excess worry about health problems, poor concentration, mild memory loss, and flattened affect. The examiner found that the Veteran’s overall level of occupational and social impairment was reflected by 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 that symptoms are controlled by medication. Further, the examiner opined that while the Veteran felt that his symptoms had worsened, the impact on his daily life remained relatively unchanged since his previous examination. In July 2014 the Veteran received another VA examination. The Veteran reported similar symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. The examiner noted that the Veteran was unable to precisely account for the frequency of his symptoms. Though the Veteran stated that he had prominent irritability issues, mainly with his wife, once or twice a week, the examiner did note that it appeared that the Veteran and his spouse were adjusting to their respective retirements and being around one another more frequently. He continued to lack energy and motivation. However, he had some social interactions; he watched his grandson at times and visited his brother in Tennessee. He denied ever having any suicidal thoughts or concerns. The examiner opined that there was no clear indication that the Veteran’s depression had worsened. Overall, the examiner concluded that the Veteran’s level of occupational and social impairment was reflected 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 normal routine behavior, self-care and conversation. The Veteran’s most recent VA examination was in May 2020, where he reported symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. He reported feeling low energy and that he argued with his wife all the time. He indicated that his daily activities were impacted by the COVID-19 pandemic, but that he used to enjoy going to watch his grandson play basketball. The Veteran did not report any suicidal or homicidal thoughts. The examiner opined that the Veteran’s overall level of occupational and social impairment was reflected by occupational and social impairment with reduced reliability and productivity. The record also contains the Veteran’s VA treatment records. The Veteran reported similar symptoms to what was reported in his VA examinations. He noted he had a fear of flying but no intrusive thoughts or nightmares. He continued to bring up his irritability and how it caused issues with his spouse. In his July 2017 VA treatment record, the Veteran expressed wanting to volunteer to pass out meals at church and get involved with the veteran center to socialize. The Board finds an increase to 50 percent, but not higher, is warranted for the period on appeal prior to July 24, 2014. However, after reviewing the evidence of record, the Board finds that a rating in excess of 50 percent is not warranted for any part of the appeal period. As noted above, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is warranted when the psychiatric disorder results in 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. The evidence of record does not show that the Veteran has suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or an inability to establish and maintain effective relationships during this period. As to social impairment, the evidence shows that the Veteran has maintained relationships with his family and his wife throughout the appeal period. Specifically, during a November 2012 VA examination, the Veteran reported that he had maintained a stable relationship with his wife and family members. He also indicated that he attended church regularly and socialized with some members. While the Veteran did report during the July 2014 and May 2020 VA examinations that he had difficulties with his wife, the May 2020 VA examiner also noted that both he and his wife were adjusting to retirement and being around one another more frequently. The July 2014 and May 2020 VA examinations also noted that the Veteran had a relationship with his grandson, and would watch him at times. Thus, although he may have some degree of social impairment, the evidence does show that the Veteran has maintained relationships with his wife and family throughout the appeal period. Regarding occupational impairment, the evidence shows that the Veteran did report feeling stressed when he was previously employed. While the May 2020 examiner did note that the Veteran reported difficulty in adapting to stressful circumstances, including work or a work like setting, during the November 2012 VA examination, the Veteran denied having any problems meeting the demands of his work. Thus, while the Veteran did experience some occupational impairment during the appeal period, he was still able to perform the tasks of his job prior to his retirement. Moreover, as discussed below, the Veteran is awarded TDIU which contemplates functional impairment resulting from his service-connected disabilities, including his depressive disorder. In addition, the November 2012 and July 2014 VA examiners opined that that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Such an opinion is commensurate with a 30 percent rating. The May 2020 VA examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. Such an opinion is commensurate with a 50 percent rating. Further, the Veteran's symptomatology has not been similar to that of the 70 percent rating criteria. Throughout the appeal, the Veteran has described symptoms of depression, anxiety, chronic sleep impairment, mild memory loss, flattened affect, and disturbances of motivation and mood. He has never reported any suicidal and homicidal ideation, nor has he ever reported having any hallucinations or delusions. There is no indication that he had obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; or inability to establish and maintain effective relationships. Indeed, throughout the appeal, the Veteran's speech was normal; he had logical, goal-directed thought; the content of his speech was appropriate; and he was well oriented to person, place, time, and purpose. See, e.g., November 2012, July 2014, May 2020 VA examination reports. Moreover, to the extent any of the symptoms of a 70 percent rating may be shown or argued, the Board again emphasizes that the Veteran’s depressive disorder has not been shown to be productive of occupational and social impairment in most areas or total occupational and social impairment to warrant a higher rating. There is no also indication that he has had any of the other symptoms of the 70 or 100 percent criteria, such as obsessional rituals; illogical, obscure, or irrelevant speech; neglect of his personal appearance and hygiene; or disorientation to time or place. After considering the evidence of record, the Board finds that the Veteran’s symptoms more closely approximate the criteria for a 50 percent disability rating throughout the appeal period. Overall, the Veteran has not demonstrated a level of impairment consistent with the 70 percent criteria, nor have the Veteran's symptoms caused occupational and social functioning in most of the areas or total occupational and social functioning referenced by the 70 and 100 percent evaluation criteria. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 70 percent have not been met or approximated. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Therefore, the Board finds that the Veteran’s depressive disorder warrants a 50 percent rating, and no higher, for the appeal period. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU TDIU may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran is currently assigned a 50 percent rating for his depressive disorder, a 30 percent rating for IBS, a 20 percent rating for hemorrhoids, a 10 percent rating for pseudofolliculitis barbae, a 10 percent rating for hypertension, and a noncompensable rating for erectile dysfunction. As discussed above, the Veteran was also assigned a 50 percent rating for his depressive disorder for the period on appeal prior to July 24, 2014. Prior to this decision, the Veteran’s total combined evaluation for his service-connected disabilities was 70 percent, effective March 22, 2010. Thus, the Veteran meets the schedular requirements for TDIU with a total combined evaluation of 70 percent and with one disability rated at 50 percent. The Veterans November 2019 VA Form 21-8940, Application for Increased Compensation Based on Unemployability, reflects that the Veteran was employed by the United States Postal Service as a custodian from July 1991 to December 2011. He reported that his depression, IBS, hemorrhoids, and hypertension prevented him from securing or following any substantially gainful occupation. He also reported that he had to leave his job due to his disabilities. The Veteran indicated that he was needing to take many days off work due to chronic IBS and hemorrhoids which contributed to his depression getting worse. He also reported that he was taking many medications and that it just got to a point where he “couldn’t mentally deal with it anymore.” At a July 2011 VA examination, the examiner noted that the Veteran’s occupational function was mildly impaired because his IBS requires him to be close to a bathroom. The Veteran also reported that his job was stressful. Nevertheless, during a November 2012 VA examination, he reported that while he was retired from work, he had no issue meeting the demands of the job. During a May 2020 VA examination, the examiner indicated that the Veteran reported chronic sleep problems and periods in which he stays in bed for most of the day due to a combination of abdominal pain from his IBS and depression. The examiner indicated that the Veteran’s low energy would negatively impact motivation and productivity and his concentration and ability to maintain focus on tasks for extended periods of time would also be affected. The examiner also noted that the Veteran describes problems with irritability and reduced frustration tolerance which would negatively impact interpersonal relationships with coworkers and/or clients. In an October 2020 VA examination, the VA examiner noted that the Veteran’s hypertension caused dizziness that would impact his ability to walk, lift, and bend, and that the Veteran would have to sit back down when dizzy. In a November 2020 opinion regarding individual unemployability, the examiner opined the Veteran could engage in sedentary work involving up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. The opinion noted that sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. After reviewing the evidence discussed above, the Board finds the evidence concerning the Veteran’s employability is in relative equipoise. The Board acknowledges the Veteran’s statement that he was able to meet the demands of the job; however, the Veteran’s ability to work his previous job does not automatically render him employable. The evidence shows his IBS necessitates him to be near a bathroom and causes him constant worry, which would interfere with his work. Additionally, he experiences poor concentration and mild memory loss due to his depression, which would negatively impact his employment. He also experiences dizziness due to his hypertension. While the October 2020 examiner opined that the Veteran could engage in sedentary work, the Board notes the Veteran’s employment history does not consist of sedentary jobs. His previous experience as a custodian would require lifting, walking, and bending, which are all impacted by his hypertension. Accordingly, as there is a balance of positive and negative evidence, the Board finds entitlement to a TDIU is warranted. J. SAIKH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.