Citation Nr: 21029793 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-03 436A DATE: May 17, 2021 ORDER Entitlement to a disability rating of 50 percent for service-connected depressive disorder, not otherwise specified (NOS), prior to January 1, 2021 is granted. Entitlement to a disability rating of 70 percent for service-connected depressive disorder, NOS, from January 1, 2021 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The most probative evidence of record demonstrates that, prior to January 1, 2021, the Veteran's service-connected depressive disorder manifested in symptomatology more closely approximating the disability picture contemplated by a 50 percent evaluation, due to symptoms such as impairment of short- and long-term memory, disturbances of motivation and mood, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. 2. The most probative evidence of record demonstrates that, from January 1, 2021, the Veteran's service-connected depressive disorder manifested in symptomatology more closely approximating the disability picture contemplated by a 70 percent evaluation, due to symptoms such as suicidal ideation, near-continuous panic affecting the ability to function effectively, and the inability to establish and maintain effective relationships. 3. The preponderance of the evidence demonstrates that the Veteran is unable to secure or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 50 percent for service-connected depressive disorder prior to January 1, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to a disability rating of 70 percent for service-connected depressive disorder from January 1, 2021 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, and 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1951 to July 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By way of background, the Veteran's appeal for an increased disability rating for his service-connected depressive disorder was previously before the Board in February 2018, at which time the Board remanded the claim for further development. The matter was returned to the Board in June 2019, at which time the Board denied entitlement to an initial disability rating in excess of 30 percent for the disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans' Claims (Court). In May 2020, the Court issued a Joint Motion for Remand (JMR), concluding that the Board erred by not providing adequate reasons and bases for its denial of the appeal and, further, by finding that VA had satisfied its duty to assist with respect to the collection of VA-generated medical evidence. Regarding VA's duty to assist, the Board observes that all VA treatment records relevant to the issues on appeal have now been associated with the Veteran's claims file. Furthermore, although the issue of entitlement to a TDIU was not formally certified for appeal, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits but is instead "part and parcel" of an increased rating claim. In this case, the Veteran, through his representative, raised the issue in his April 2021 Appellate Brief. Therefore, the Board has characterized the issues on appeal to include the issue of entitlement to a TDIU. This appeal has been advanced on the Board's docket in accordance with 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss every piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the Veteran's claims. Increased Disability Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably discerned, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms satisfying the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt that may remain is to be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evaluation of Psychiatric Disorders Psychiatric disorders are rated under the General Rating Formula for Mental Disorders, which provides, in pertinent part, that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: A 30 percent rating is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent rating is warranted 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; disturbances of motivation and mood; and 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, and thinking and/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 an 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 oneself 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 name. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that impacts occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board's primary considerations are a veteran's symptoms and how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms and that a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Additional Considerations During the pendency of the Veteran's appeal, VA amended the portion of the Rating Schedule governing mental disorders. Notably, psychiatric examinations previously included the assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." Currently, clinicians assessing the symptoms and severity of mental health issues use the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The Court has noted that the DSM-5 eliminated GAF scores because of their conceptual lack of clarity and questionable psychometrics in routine practice and has further stated that an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. The Court explained that symptoms should be the primary focus when assigning a rating for a psychiatric disorder and clarified that the use of numerical GAF scores as a shortcut for gauging psychiatric impairment would be error. Further noted was that the adequacy of medical examinations has never depended upon the use or inclusion of GAF scores. Golden v. Shulkin, 29 Vet. App. 221 (2018). The provisions of the current regulations apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran's appeal to the Board in August 2013; therefore, the claim is governed by the criteria of DSM-IV. However, the amended regulations made no change to the symptomatology associated with each of the disability ratings provided for in the General Rating Formula for Mental Disorders. As a further matter, if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. In reviewing the evidence of record, the Board will consider the GAF scores assigned in the pertinent VA examination(s); however, the Board is cognizant that GAF scores are not, in and of themselves, a dispositive element in rating a disability. Indeed, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). Therefore, for the purpose of adjudicating the Veteran's claim for an increased disability rating for his service-connected depressive disorder, the Board will examine all relevant medical evidence under the criteria of the DSM-IV only insofar as its application benefits the Veteran. 1. Entitlement to a disability rating of in excess of 30 percent for service-connected depressive disorder prior to January 1, 2021 The Veteran was granted service connection for depressive disorder, NOS (originally claimed as posttraumatic stress disorder (PTSD)), in a June 2011 rating decision, which assigned the disability an evaluation of 30 percent disabling and an effective date of January 20, 2011. See rating decision dated June 15, 2011. The Veteran expressed his disagreement with the assigned disability rating in correspondence received by VA in July 2011, asserting that the severity of the disorder warranted a disability evaluation of at least 50 percent. See correspondence dated June 29, 2011. His reported symptomatology included chronic depression, withdrawal from friends and family and/or social isolation, disturbances of motivation and mood, impaired short- and long-term memory, a general sense of apathy, fluctuating moods causing distress or impairment in social functioning and daily activity, emotional distancing, irritability, weight fluctuations, hopelessness, and difficulty concentrating. See Appellate Brief dated January 23, 2018; Appellate Brief dated May 10, 2019; see also Appellate Brief dated April 16, 2021. Turning to the medical evidence relevant to the period on appeal, the Veteran was first afforded a VA psychiatric examination for his claimed PTSD in April 2011. At that time, a VA psychologist noted that the Veteran's symptoms did not qualify him for a diagnosis of PTSD under the rating criteria of DSM-IV, as he "did not meet the stressor criterion or diagnostic criteria for PTSD." See VA examination dated April 25, 2011. However, the psychologist provided a diagnosis of depressive disorder, NOS. The Veteran relayed to the examiner that he had regularly experienced a depressed mood for the last several years and that the condition discouraged him from engaging in social activities. Additional symptomatology observed upon examination included intrusive memories, nightmares, avoidance of thinking/talking about traumatic events and anything that triggers memories of such events, and a compromised ability to sleep. The psychologist assigned the Veteran a GAF score of 65, indicative of mild symptomatology that generally does not interfere with overall functioning. Medical treatment records further indicate that, in late 2016, the Veteran reported to a VA clinician that he no longer wished to take medication to treat his depression and was able to cope with the disorder on his own. See medical treatment records dated September 23, 2016 and December 23, 2016. He articulated that he stopped taking the medication prescribed for his depression because it caused him to experience a tightness in his chest. See, e.g., id.; see also medical treatment records dated July 13, 2017. However, the Veteran was placed on a different medication in 2017 and subsequently reported no adverse side effects. See medical treatment records dated September 7, 2017 and November 21, 2017. Additionally, in early 2018, the Veteran sought psychiatric treatment from a private healthcare provider, who prescribed a medication that reportedly increased the Veteran's heartrate. See medical treatment records dated March 18, 2018. The dosage of the medication was adjusted; and the following month, the Veteran conveyed to a VA clinician that the prescription seemed to work well. See medical treatment records dated April 17, 2018. The Veteran underwent a VA examination for his service-connected depressive disorder in January 2019, at which time an examiner documented that the disorder resulted 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 normal routine behavior, self-care, and conversation. See VA examination dated January 28, 2019. The Veteran's depressive disorder was observed to manifest in depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. However, to the extent that the January 2019 examination did not document other symptoms, the Board finds the Veteran's consistent and credible lay statements to be the most probative evidence of record relating to the severity of his depressive disorder. Indeed, lay persons are competent to report symptomatology experienced firsthand. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Given the foregoing, the Board finds that, prior to January 1, 2021, the record demonstrates that the severity of the Veteran's service-connected depressive disorder manifested in symptoms more closely approximating the disability picture contemplated by a 50 percent evaluation. Specifically, the Veteran's depressive disorder manifested in depressed mood, impairment of short- and long-term memory, disturbances of motivation and mood, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is not warranted for this period, as the evidence does not indicate that the severity of the Veteran's symptoms caused occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and/or mood, due to symptoms such as suicidal ideation; obsessive rituals that interfere with routine activities; impaired impulse control; spatial disorientation; or neglect of personal appearance and hygiene. 2. Entitlement to a disability rating in excess of 50 percent for service-connected depressive disorder from January 1, 2021 The record also reflects that the Veteran provided a medical opinion from a private physician who interviewed the Veteran and extensively reviewed his relevant medical history and symptomatology. See medical opinion dated January 1, 2021. In the opinion, the physician described in detail the great extent to which the Veteran's service-connected psychiatric disorder impacts his social and occupational functioning. At the time of evaluation, the Veteran detailed symptoms including nervousness, difficulty concentrating, indecisiveness, impatience, frequent insomnia, and constant worry. The physician documented that the Veteran's affect was "depressed and anxious" and that he reported passive suicidal ideation without plan or intent, disinterest in previously pleasurable activities, psychomotor retardation, and loss of energy. Significantly, the clinician observed that the Veteran expressed embarrassment in discussing his symptoms and their severity and further suggested that prior psychiatric evaluations of record may not accurately document the severity of his depressive disorder, as due to the Veteran's reluctance to verbalize his symptomatology. As noted above, however, the Board has found the Veteran's lay statements particularly probative in evaluating the severity of his depressive disorder. In light of the findings contained in the January 2021 medical report, the Board finds that the severity of the Veteran's depressive disorder merits a disability rating of 70 percent from January 1, 2021. Specifically, the Veteran's symptomatology more closely approximates the disability picture contemplated by such rating, due to symptoms such as suicidal ideation, near-continuous panic affecting the ability to function effectively, and the inability to establish and maintain effective relationships. The record does not support a 100 percent disability rating because the Veteran's depressive disorder does not manifest in severe symptoms such as gross impairment in thought processes or communication, peristent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss of own name or the names of close relatives. 3. Entitlement to a TDIU The law provides that a total disability rating may be assigned where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if there is only one such disability, the disability shall be ratable at 60 percent or more; or, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether a veteran has a single disability rated as 60 percent disabling or a single disability rated at 40 percent disabling, with combined other disabilities totaling 70 percent, the following will be considered as one disability: disabilities of one or both upper extremities, or of one or both lower extremities, including calculation of the bilateral factor, if applicable; disabilities resulting from a common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. Id. "Substantially gainful employment" is considered that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran asserts that his service-connected bilateral hearing loss, tinnitus, and depressive disorder have rendered him unable to secure or follow substantially gainful employment. See VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability, received April 16, 2021. He contends that his hearing loss causes great difficulty communicating with others; and he further contends that the symptoms of his depressive disorder not only preclude him from engaging with others but also compromise his ability to concentrate on tasks. See id.; see also Appellate Brief dated April 16, 2021. The Board finds that the record supports a grant of entitlement to a TDIU. As an initial matter, the Board notes that the Veteran currently satisfies the schedular requirements for a TDIU. See 38 C.F.R. § 4.16(a). To that end, he is service connected for bilateral hearing loss, currently rated as 50 percent disabling; tinnitus, currently rated as 10 percent disabling; and depressive disorder, NOS, granted herein at 70 percent disabling. The aforementioned disability ratings result in a combined evaluation of 90 percent disabling. Turning to the medical evidence, the most recent audiological examination report indicates that the Veteran's hearing loss and tinnitus cause him great difficulty communicating with others and negatively impact the ordinary conditions of daily life, including his ability to work. See VA examination dated November 27, 2019. Additionally, in the January 2021 medical opinion referenced above, a physician opined that the Veteran's various service-connected disabilities render him "incapable of functioning safely and efficiently in any modern occupational setting," active or sedentary. See medical opinion dated January 1, 2021. Moreover, the record contains an opinion from a professional vocational consultant who, after examining the Veteran's relevant medical history and lay statements, concluded that the "combination of [the] impairments [caused by service-connected disabilities] has prevented him from participating in gainful employment." See opinion dated March 5, 2021. Based on the foregoing, the Board finds that the Veteran's service-connected disabilities preclude him from securing and maintaining substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. T.D. JONES Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.