Citation Nr: 21041741 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-63 239 DATE: July 10, 2021 ORDER A rating of 30 percent, but no higher, for the service-connected major depressive disorder is granted for the entire appeal period, subject to the laws and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected major depressive disorder has caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but no worse symptoms. 2. The evidence of record does not show that the Veteran is unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating, but no higher, for the Veteran's service-connected major depressive disorder have been met throughout the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for a TDIU, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1972 to October 1975. In December 2018, the Board of Veterans' Appeals (Board) remanded this appeal for further evidentiary development. Increased RatingMajor Depressive Disorder Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate DCs identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's major depressive disorder has been rated as 10 percent disabling prior to May 16, 2019, and as 30 percent disabling on and thereafter. He seeks higher ratings. According to the General Rating Formula for Mental Disorders, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, DC 9434. A 10 percent rating is assigned when a psychiatric disability 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 continuous medication. Id. 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 task (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, recent events). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating requires 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 interfering 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 (such as work/a work-like setting); inability to establish/maintain effective relationships. Id. A 100 percent rating is warranted where there is 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. In addition, when evaluating a mental disorder, the rating agency shall 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(a). The rating agency shall assign an evaluation 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board notes that, with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" 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 only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The United States Court of Appeals for the Federal Circuit emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It held 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. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM). When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio, 713 F.3d at 118. It is the impact of the symptoms on occupational and social functioning that determines the rating. The Veteran's case has been considered entirely under the VA rating schedule contained in 38 C.F.R., Part 4. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Throughout the appeal period, affording the Veteran the benefit of the doubt, his acquired psychiatric disability has caused, at most, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but has not caused occupational and social impairment with reduced reliability and productivity for any distinct period of time during the appeal. The Veteran submitted a private psychiatric evaluation from Dr. H.J., MD, dated November 8, 2014. Dr. H.J. noted that the Veteran reported that he was not currently employed, but had last worked in 2013 as a pastor. He reported suffering from symptoms of depression and anxiety, and that he had issues with focus and concentration. He stated that his short-term memory was problematic, and was affected by regular panic attacks, occurring two or three times per week. On examination, Dr. H.J. observed that the Veteran was cooperative and able to relate to the examiner. The Veteran had a blunted affect with psychomotor retardation and was able to answer questions appropriately without being spontaneous. His speech was normal. The examiner did not observe any flight of ideas, looseness of association, circumstantial thought, or preservation. The Veteran had thought blocking, word searching and delayed thought. His speech was slow. He denied any auditory or visual hallucinations as well as any suicidal or homicidal thought or self-injurious behavior. Dr. H.J. diagnosed major depressive disorder and panic disorder with agoraphobia. A March 2016 VA mental disorders examiner found that the Veteran did not have a mental disorder diagnosis. She noted that none of the Veteran's prior psychiatric evaluations appeared to have included objective psychological testing which included measures of symptom validity. Such was performed on examination at this time and suggested exaggeration of symptoms and inaccurate self-reporting. Although individuals who present with inaccurate self-report of symptoms may have significant and distressing mental health systems, due to the inaccuracy of the Veteran's self-report, she was not able to determine his current level of functioning or any mental disorder diagnosis at the time. Given the contradictory medical evidence regarding the Veteran's psychiatric state, the Board remanded this case in December 2018 for a new VA examination to determine the nature and severity of the Veteran's service-connected psychiatric disability. Such examination was completed in May 2019. The examiner found that the Veteran met the DSM criteria for a diagnosis of major depressive disorder, and his disorder caused 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. The Veteran reported residing with his son and daughter and having separated from his wife the prior June. He recalled having significant distress in the marital relationship due to his anger, but had a good relationship with his children. He also saw his brother and sister regularly and was actively involved with his church. He denied having social activities outside of the church. He reported that he continued to serve as the pastor at his church and was not involved with the church-based daycare. He further stated that he was never involved with the daycare, but his name was associated with it because of his role as pastor of his church. Specifically, he was involved with Bible study at the church on Tuesdays and services on Friday and Sunday. The Veteran was prescribed medication to manage his psychiatric symptoms, but continued to experience symptoms of anxiety and depression and being easily irritable and agitated. The examiner noted that the Veteran was previously charged with fraud for collecting unemployment while gainfully being employed as a pastor, and previous psychological testing was invalid due to significant exaggeration and embellishment of symptoms. The Veteran was noted as continuing to report a history of auditory and visual hallucinations, but did not present with any such symptoms during the interview. Regardless, his current prescriptions for mood medications indicated some disturbances related to his mood. He was incarcerated for 18 months related to charges of fraud, but had been released in September 2014. The examiner note that the Veteran denied any suicidal or homicidal ideations, and that there continued to be ongoing concern related to the validity of his self-report. Although he reported, "I don't do much," he was actively working at least three days a week with his church. He also told the examiner he was unable to read, but was later able to read information related to his appointment and net steps following this appointment after making such statement. Given his presentation in the appointment, he was likely experiencing symptoms of anxiety and depression, but the severity of his symptoms was unclear. For VA rating purposes, the examiner noted that the Veteran was experiencing symptoms of anxiety and depression related to his mental health diagnosis. He was also polite, open, and cooperative; dressed casually and appropriately with good hygiene; and displayed appropriate affect to the content of his speech. His thought process was logical and organized. There was no delusional thought content and no evidence of responding to internal stimuli. Speech and motor activity were within normal limits, and memory, attention, and concentration appeared intact. The Veteran was alert and oriented as to person, time, place, and situation. The examiner concluded that, due to his current prescribed medications for depression, the Veteran continued to meet his depression diagnosis. Given the Veteran's history of mental health concerns, he was likely experiencing at least a mild degree of depression controlled by medicine. His depression likely impacted his social and occupational functioning, but not to the extent that he was unable to engage in meaningful social and occupational engagements (as evidenced by his current medicine list and ongoing satisfactory performance as a pastor). The Board has considered the Veteran's VA and private treatment records. However, given the inconsistencies noted by VA examiners in his reporting of symptoms, and the inconsistent reporting of symptoms in his medical records, the Board is unable to afford them greater weight than the opinions of the VA examiners which addressed the issues with his inconsistent reports of symptoms. Particularly, the Board finds that the May 2019 VA examiner's report is the most probative medical evidence of record regarding the Veteran's severity of psychological symptoms. This examiner based her assessment on the most complete evidence of record, including consistent symptom reports as well as inconsistent symptom reports and prior findings of inaccurate self-reporting. The Veteran's medical records, on the other hand, contain psychiatric visit notes which did not consider the issue of inaccurate self-reporting in relaying the Veteran's reported psychiatric symptoms. Thus, they were not based upon a complete review of the record, and simply noted the Veteran's self-reports, which have been found to be questionable. The totality of the evidence supports a 30 percent rating, but no higher, for this service-connected psychiatric disorder throughout the period on appeal. The May 2019 VA examiner compassionately reviewed the record and found that the evidence supports that the Veteran clearly suffers symptoms of anxiety and depression. Despite his inconsistent descriptions of his psychiatric symptoms, she concluded that he still experiences psychological symptomatology, rather than disregarding all such reports. While VA has a statutory duty to assist a veteran in developing evidence pertinent to a claim, he/she also has a duty to assist and cooperate with the VA in developing evidence. In other words, VA's duty to assist is not a one-way street. If a veteran wishes help, he or she cannot passively wait for it in those circumstances where he or she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). VA's duty must be understood as a duty to assist a veteran in developing his or her claim, rather than a duty on the part of VA to develop the entire claim with the veteran performing only a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In psychiatric rating cases, a veteran is often the one with personal knowledge of his psychiatric symptoms, and his refusal to cooperate and to describe his psychiatric state accurately only prevents VA from obtaining accurate evidence from him to support his claim. Thus, the Board cannot simply rely on his lay statements when the medical evidence considering the inconsistencies in his lay statements, and considering the evidence in the light most favorable to the Veteran, paints a different picture of the severity of his disability. In addition, the Board finds that the record does not establish that the Veteran's acquired psychiatric symptoms have resulted in occupational and social impairment with reduced reliability and productivity. The Veteran has not credibly and consistently evidenced symptoms severe enough to warrant this next level of severity. As such, the criteria for a rating in excess of 30 percent for the Veteran's acquired psychiatric disorder has not been shown during the period on appeal. He is entitled to a rating of 30 percent, but no higher, throughout the period on appeal for his service-connected acquired psychiatric disorder. TDIU All veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate 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. Total disability ratings for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). "Marginal employment," as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income." Other factors considered in determining whether a veteran is unemployable are his level of education, employment history, and his vocational attainment. Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether the Veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board cannot make a determination as to an extraschedular evaluation in the first instance. See also VAOPGCPREC 6-96. During this appeal, Veteran's service-connected disabilities have consisted of a major depressive disorder (rated as 30 percent disabling), hypertension (rated as 10 percent disabling), gastroesophageal reflux disease (rated as 10 percent disabling), and impotency associated with major depressive disorder (rated as noncompensable). As such, throughout the period on appeal, the Veteran had a combined total disability rating of 40 percent. Because he did not have multiple disabilities with a combined rating of 70 percent, he did not meet the minimum rating requirements of § 4.16(a) for a TDIU rating. Where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may still be considered if the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Veteran submitted an Employment Questionnaire VA Form 21-4140-1 in January 2016. Therein, the Veteran reported that he had not been employed at any time during the prior 12 months. He also submitted Applications for Compensation Based on Unemployability VA Form 21-8940 in April 2015 and in March 2016. At both times, he reported that he had not worked since 1997, when he was last employed with the United States Postal Service, and he had not attempted to obtain employment since that time. The Board notes that, the Veteran's statements to VA in support of his TDIU claim that he had not worked since 1997 are refuted by prior findings that these statements were fraudulent. Specifically, the Veteran had previously been awarded a TDIU which was terminated in 2011 by VA. The August 2011 rating decision proposing to terminate the Veteran's prior TDIU award noted that the Veteran had been gainfully employed since 1992, when he founded his church where he was then holding the position of "bishop." This decision noted that the Veteran reported to VA in 2006, 2007, and 2008 that he was not employed or self-employed despite evidence being uncovered showing he served as a pastor of his church and admitted to receiving payment for his church services. Further, the Veteran reported to his private psychiatrist in July 2015 that he had then been teaching at his church. He also disclosed working at his church as a bishop to the May 2019 VA examiner. As such, the only evidence in the claims file suggesting that the Veteran has been precluded from employment is in the form of the above statements he submitted denying having been employed since 1997, and all such statements are contradicted by the record. There is no credible evidence of record suggesting that the Veteran's service-connected disabilities preclude all forms of substantially gainful employment during the period on appeal. Thus, the Veteran has not provided sufficient evidence to substantiate his claim; nor has he indicated that such evidence exists, and that VA should attempt to obtain it. While the Board does not wish to minimize the nature and extent of the Veteran's overall disabilities, the evidence of record does not support his claim that his service-connected disabilities are sufficient to warrant the assignment of a TDIU. The evidence does not show that gainful employment was precluded due to his service-connected disabilities. Referral of this TDIU claim on an extraschedular basis is not warranted. The weight of the competent and credible evidence does not establish that the Veteran was at least as likely as not precluded from all forms of substantially gainful employment due solely to his service-connected disabilities during the period on appeal. The preponderance of the evidence is against the claim for TDIU, and this issue is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.