Citation Nr: 21026649
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 16-27 339
DATE: May 3, 2021

ORDER

Entitlement to an initial rating in excess of 50 percent for major depressive disorder (MDD) is denied.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

FINDINGS OF FACT

1. The preponderance of the evidence does not show that the Veteran's MDD more nearly approximated occupational and social impairment with deficiencies in most areas at any time during the period on appeal.

2. During the period on appeal, the preponderance of the evidence does not show that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 50 percent for MDD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434.

2. The criteria for entitlement to a TDIU have not 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 on active duty in the United States Air Force from February 1980 to May 1980, from May 1997 to October 1997, and from December 3, 2003 to December 7, 2003.

This matter comes before the Board of Veterans' Appeals (Board) from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), that, in pertinent part, granted service connection and assigned an initial 30 percent rating for depressive disorder, effective September 14, 2015.

The Board previously remanded this case in November 2018 for additional development. As the actions specified in the remand have been substantially completed, the matter has been properly returned to the Board. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

During the pendency of the appeal, in a January 2021 rating decision, the Regional Office (RO) assigned the Veteran a 50 percent rating for her MDD, effective September 14, 2015. As this increase is a partial grant of the benefit sought, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claimant is presumed to be seeking the maximum rating allowed by law).

In addition, the Board notes that the original appeal included a service connection claim for a right hip disability. However, during the pendency of the appeal, in a January 2021 rating decision, the RO granted service connection for a right hip disability with a 10 percent evaluation effective September 14, 2015. As the decision is a full grant of those benefits and the Veteran has not appealed the decision, the claim is no longer before the Board for appellate review. 

Increased Rating

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found, is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Gilbert, 1 Vet. App. at 53.

1. Entitlement to a rating in excess of 50 percent for major depressive disorder (MDD)

The Veteran seeks an initial rating higher than 50 percent for her service connected MDD. The Veteran contends that she is entitled to a higher rating because her psychiatric symptoms are more severe than contemplated by her currently assigned rating. For the reasons specified below, the Board finds that an initial rating in excess of 50 percent is not warranted at any time since the September 14, 2015 effective date of the grant of service connection.

The Veteran's MDD is rated under Diagnostic Code 9434. Pursuant to a General Rating Formula for Mental Disorders, specified in 38 C.F.R. § 4.130, a 50 percent rating is appropriate when there is 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 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 that 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 (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish and maintain effective relationships.

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 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. 38C.F.R. §4.130, Diagnostic Code 9434, General Rating Formula for Mental Disorders.

The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. See id.

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a).

In other words, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017).

The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-V), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14, 308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018).

Turning to the relevant evidence of record, the Veteran underwent a disability benefits questionnaire (DBQ) examination in November 2015. Upon examination, the examiner diagnosed the Veteran with MDD. The Veteran reported symptoms of depressed mood and chronic sleep impairment. She stated that she has one child from a previous marriage and two grandchildren. She had since remarried. She had retired from her job in 2011.

The examiner determined that the Veteran's psychiatric disorder causes 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 medication, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. She was deemed capable of managing her own finances. The examiner observed that her affect was somewhat depressed, and she was tearful during their conversation. She denied suicidal ideation.

The Veteran underwent a VA examination in January 2021. The Veteran reported that she often does not feel like getting out of bed and does not desire to be social. The Veteran further described how her physical limitations due to chronic pain contribute to her low mood. She endorsed having chronic sleep impairment but denied having any nightmares. She stated she constantly feels down, annoyed, hopeless, helpless, is frequently tearful and experiences daily anxiety. She is unable to tolerate crowds and described going to the grocery store when it is less busy. She further explained that her symptoms have had a significant impact on her marriage, ultimately leading to separation from her husband.

The examiner confirmed the Veteran's prior diagnosis of MDD. Upon examination, the Veteran's symptoms were noted to be depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances in motivation and mood. The Veteran was observed to be alert and oriented to time, space, identity, and location. Her mood was down and irritable, and she was tearful throughout the evaluation. The examiner determined that the Veteran's psychiatric disorder causes occupational and social impairment with reduced reliability and productivity. The examiner observed that the Veteran arrived on time for her evaluation, was appropriately dressed and presented with adequate hygiene. The Veteran denied suicidal ideation, plan, intent though she endorsed past suicidal ideation several years ago when her marriage first started "going downhill." She was deemed capable of managing her financial affairs.

The Board has reviewed the Veteran's VA treatment records, which show that she has undergone continuous treatment for MDD throughout the period on appeal, including group therapy. During the relevant period, the Veteran routinely endorsed symptoms of anxiety, depression, sleep impairment, and avoidance. The Veteran has always denied experiencing suicidal or homicidal ideation, hallucinations, delusions, or psychosis. VA practitioners consistently found her to be oriented to person, place, and time with logical and appropriate speech, thought process and content, and congruent mood and affect.

The Board has further reviewed the Veteran's private treatment records for the period on appeal from her private psychiatrist, Dr. H.J. The Veteran reported that she stays home most of the time and doesn't have many interactions with friends. She endorsed symptoms of depressed mood and stated that her ankle pain contributes to anxiety and poor sleep. 

Dr. H.J. consistently found the Veteran to be appropriately dressed, cooperative, alert and oriented. He stated that she exhibited some anxiety, presented with a blunted affect, conversed with normal speech, had an affect congruent with her mood, and normal thought process, though he did observe some psychomotor retardation. She denied hallucinations, paranoia, and delusions. The examiner determined the Veteran had no problem with memory. She denied suicidal ideation.

After careful review of the medical and lay evidence of record, the Board finds that the preponderance of the evidence is against assigning a rating in excess of 50 percent at any time during the period on appeal for the Veteran's service-connected MDD.

During the appeal period, the totality of the Veteran's MDD has manifested primarily by symptoms of anxiety, depressed mood, inability to sleep, lack of motivation, mild memory loss and poor concentration and focus. The Veteran continues to function independently, appropriately, and effectively. Though she reported high anxiety levels and dysphoria due to limitations from her chronic ankle pain and lack of physical abilities, the Board finds that such symptomatology is consistent with occupational and social impairment with reduced reliability and productivity, the criteria for a 50 percent disability rating.

The Board emphasizes that the evidence does not show that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. None of the Veteran's treating clinicians found that she had obsessional rituals which interfered with routine activities, speech that was intermittently illogical, obscure, or irrelevant, spatial disorientation, neglect of personal appearance and hygiene, or more severe symptomatology such as to warrant at least the next higher 70 percent rating. Bowling v. Principi, 15 Vet. App. 1 (2001); Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).

Furthermore, the Board finds that the Veteran's symptoms are not such to warrant a 100 percent rating. At no time during the appeal period did the Veteran exhibit symptoms of gross impairment of thought processes, persistent delusions or hallucinations, persistent danger of hurting herself or others, intermittent ability to perform activities of daily living, or disorientation to time or place which would support a finding that the Veteran's disability caused total social or occupational impairment.

The Board also notes that the Veteran reported suicidal ideation "a few years ago" at her January 2021 evaluation. However, she attributed this to the circumstances surrounding the end of her marriage. She expressed no intent or plan. However, aside from this singular notation, the Veteran has consistently denied suicidal ideation, intent, or plan to her VA and private mental health providers and examiners. The facts of this case appear to be distinguishable from Bankhead v. Shulkin, in which the United States Court of Appeals for Veterans Claims held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). See Bankhead, 29 Vet. App. at 20. Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Id. at 19-23.

This case is distinguishable from Bankhead because, unlike in Bankhead, the singular notation of suicidal ideation during the appeal by itself or when considered with other symptomatology, did not cause the level of occupational and social impairment associated with a 70 percent disability rating. As previously noted, the record does not reflect symptomatology of deficiencies in most areas, particularly, work, judgment, thinking or mood such that her symptoms equate to the severity, frequency and duration of near continuous panic or depression, impaired impulse control, obsessional rituals, or spatial disorientation. Based on the facts of the instant case, the sporadic (and temporary) instance of reported suicidal ideation related to the ending of the Veteran's marriage, does not more nearly approximate occupational and social impairment with deficiencies in most areas, but rather, the collective symptoms reflect a lesser degree of impairment that is contemplated by the currently-assigned 50 percent rating.

In reaching the above conclusion, the Board acknowledges that the Veteran sincerely believes her MDD symptoms to be more severe than contemplated by her currently assigned 50 percent disability rating. The Veteran is competent to report on factual matters of which she has first-hand knowledge, such as experiencing an increased level of psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, she is not competent to report that her psychiatric symptoms are of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than subjective complaints of increased symptomatology.

The Board does not dispute that the Veteran's disability causes her distress and impairment in social, occupational, or other important areas of functioning. However, the Veteran is compensated for this impairment for the period from September 14, 2015 a 50 percent disability rating. The Board must assign a rating based on a cumulative review of the medical and lay evidence of record, which, in this case, does not show a disability picture that more nearly approximates occupational and social impairment with deficiencies in most areas.

Accordingly, the Board finds that the preponderance of the evidence is against finding that an initial rating in excess of 50 percent for the Veteran's MDD is warranted at any time since the September 14, 2015 effective date of the grant of service connection. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

2. Entitlement to a TDIU

The Veteran's claim for a TDIU was raised during the pendency of her appeal for her initial higher rating claim for her service-connected MDD, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran continues to assert that her service-connected MDD prevents her from securing and following a substantially gainful occupation.

It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341(a).

If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran's service-connected disabilities render her incapable of substantial gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16(a).

The Veteran is currently service-connected for major depressive disorder (rated 50 percent disabling); right ankle sprain (rated 10 percent disabling); right hip pain associated with the right ankle sprain (rated 10 percent disabling); limitation of flexion of the right hip associated with the right ankle sprain (rated noncompensable); and limitation of abduction of the right hip associated with the right ankle sprain (rated noncompensable). When these percentages are combined and the bilateral factor for the Veteran's right lower extremity disabilities is considered, the Veteran has a combined rating of 60 percent from September 14, 2015. See 38 C.F.R. §§ 4.25, Combined Ratings Table; 4.26, Bilateral Factor.

In exceptional circumstances, where the Veteran does not meet the percentage requirements under the schedular criteria, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. Such cases are referred to the Director of Compensation Service for extraschedular consideration. The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b).

Referring a case for extraschedular consideration requires that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id.

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.

Having determined that the Veteran is not eligible for assignment of a schedular TDIU, the question before the Board is whether the Veteran is unable to secure or follow a substantially gainful occupation solely by reason of her service-connected disabilities, such that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted.

The Board notes that the claims file contains little information in regard to the Veteran's occupational history. However, the evidence of record indicates that she is a high school graduate with some business college courses and that she last worked in human resources for the North Carolina Air National Guard, from which she retired in August 2011.

At a November 2015 disability benefits questionnaire (DBQ), the examiner found that the Veteran's MDD causes 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 medication.

At a January 2021 psychological examination, the examiner determined that the Veteran's MDD causes occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran is so depressed that she has difficulty sustaining energy and motivation to complete assignments at work and she has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others.

The Veteran's private and VA treatment records were also reviewed. However, the Veteran's treating clinicians do not make any suggestions that she is unemployable at any time.

Based on the foregoing evidence of record, the Board finds that the preponderance of the evidence does not show that the Veteran's service-connected disabilities rendered her unable to secure and follow a substantially gainful occupation.

In making this determination, the Board acknowledges that the Veteran's service-connected disabilities certainly cause her some level of functional impairment. For example, her MDD causes impaired sleep, diminished concentration, irritability, and difficulty establishing and maintaining effective relationships symptoms which would undoubtedly interfere with productivity in a workplace setting. However, a cumulative review of the psychiatric symptoms reported by the Veteran during the appeal period do not support a finding of total and permanent disability due to MDD. As discussed above, her symptoms, at most, cause reduced reliability and productivity.

Furthermore, while the Veteran's right leg conditions sometimes limit prolonged sitting, standing, walking, bending and performing routinely daily activities, there is no evidence to support a finding that this functional impairment otherwise renders her unable to secure or follow a substantially gainful occupation.

In sum, the medical evidence of record does not suggest that the Veteran is unemployable due to her service-connected MDD and right leg conditions. Further, the Board finds it significant that the Veteran has not put forth any specific contentions as to how her service-connected disabilities prevent her from securing or following substantially gainful employment. Finally, there is nothing in the Veteran's medical records to suggest that her disabilities cause such an exceptional or unusual disability picture so as to place her in a different category than other veterans with an equal rating of disability. As such, there is no basis for referring the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b).

(Continued on the next page)

 

In making this finding, the Board emphasizes that the rating schedule is intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. To the extent that service-connected disabilities affect the Veteran's employment, the assigned schedular ratings for her disabilities compensate the Veteran for such impairment.

Accordingly, the Board finds that the preponderance of the evidence is against finding that the Veteran's service-connected disabilities prevent her from securing or following a substantially gainful employment. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49.

 

 

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rosenthal, Ariana

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.