Citation Nr: 21041894 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 19-19 883 DATE: July 10, 2021 ORDER Entitlement to an increased rating in excess of 70 for major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms during the appellate period do not more closely approximate total occupational and social impairment. 2. The Veteran has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 9434. 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. §§ 1155, 5107(b); 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 served on active duty service from November 2003 to November 2007. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2021. A transcript of that hearing has been associated with the claims file. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 1. Entitlement to an increased rating in excess of 70 for major depressive disorder The Veteran seeks a rating in excess of 70 percent for his service-connected major depressive disorder, currently rated under Diagnostic Code 9434. The Veteran's claim for major depressive disorder was initially granted in an October 2017 rating decision, evaluated at 70 percent effective January 28, 2017. The Veteran did not appeal this decision. In October 2018, the Veteran filed a claim for increased compensation. The Veteran's claim for a rating in excess of 70 percent for depression was denied in December 2018 and February 2019. The Veteran filed a notice of disagreement in February 2019, and a subsequent Form 9 in July 2019. Under DC 9434, a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. Turning to the evidence of record, the Veteran underwent a VA examination for his mental health most recently in September 2017. The examiner found that the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The Veteran reported that he was divorced, and had been for two years, with no children. The Veteran reported being in treatment at the VA and on medication for his depression. He denied suicidal or homicidal ideation. He reported that he was hospitalized for suicidal ideation in February for three days, but denied current intent. He denied a history of violence but admitted to angering easily. He denied symptoms associated with thought disorder such as hallucination or delusions. The examiner noted that the Veteran suffered from the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining work and social relationships, difficulty adapting to stressful circumstances including work or a worklike setting, and suicidal ideation. The examiner noted that the Veteran's speech was normal, facial expressions consistent with content, and thought processes were linear and logical. The Veteran was well groomed and displayed depressed affect and poor eye contact. In a May 2018 medical note, the Veteran reported that he did not have many social activities, as mainly he worked out. He also reported that his irritability was ongoing, and that something small could trigger him and ruin his day. He reported that he could get overwhelmed with emotions, and that he could take things personally in social interactions. Interacting could further lead to anger and sadness. In an August 2018 medical note, the Veteran denied any suicidal or homicidal ideation, or any acute mental health distress. In January 2019, the Veteran clearly denied suicidal or homicidal ideation, intent, or plan. He denied aggressiveness or violence in the past 30 days. At the Veteran's hearing in May 2021, he reported that his depression could last for days on end, and he avoids new situations. He was on medication, but reported that it was hard to stay motivated. Some days he just stays inside of the house all day. He often will not change clothes or shower or brush his teeth. He reported that he lives with his mother in her RV in California. The Veteran reported that he has anxiety, which causes him to feel like it's an obligation being around people, and causes him to shut down. He cannot be in large groups. He avoids interaction and prefers to be isolated because that is his safe zone. He is not employed and wants to go out and do things, but he is not capable of doing things. He reported that he has tried to get a job since 2016, but has not been successful. It always turns into a confrontation situation. His desire to be employed is there, but the ability is not. He also reported disruptive sleep, feeling like he ran a marathon at night, waking up throughout the night, and waking up in the morning still tired. During the day he is tired with no energy. He also reported panic attacks which include getting tense, heart racing, and repetitive thoughts over and over. In order to reduce his anxiety, the Veteran reported all he knows how to do is leave the situation that triggers it. The Veteran also reported suffering from hypervigilance, causing him to keep his back against the wall and facing exits, and being guarded to protect himself from panic attacks. He further reported that he struggles with his memory. He will forget things if he does not write them down, and even when it's written down he is not motivated to do it. He forgets about completing tasks, or his anxiety will prevent him from being able to do it. The Veteran clarified that while he is grateful to his mother for taking him in, there was not much of a relationship outside of that because she does her own thing. He does not have friends, or talk to the rest of his family. The Board notes that throughout the appeal period there are numerous medical records regarding the Veteran's ongoing treatment and therapy for his depression. Throughout these medical documents, the Veteran's symptoms are similar to those noted in his VA examination and the select medical notes excerpted above. Based on consideration of the relevant lay and medical evidence, the Board finds that the Veteran's symptoms more closely approximated the symptoms contemplated under a 70 percent rating. Throughout the period on appeal, the Veteran has displayed occupational and social impairment, with symptoms such as depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining work and social relationships, suicidal ideation, and difficulty adapting to stressful circumstances including work or a worklike setting. As such, the Veteran has clearly met the criteria for a 70 percent rating for major depressive disorder. However, the preponderance of the evidence is against the assignment of a 100 percent rating for the Veteran's depression during the pertinent appeal period. The Board acknowledges that the Veteran experiences some symptoms contemplated by a 100 percent rating. However, the overall evidence does not demonstrate that these symptoms reach the level of impairment associated with a 100 percent rating. As noted above, the Veteran's symptoms were either contemplated by or more consistent with a 70 percent rating. While the Veteran has occasionally experienced suicidal ideation, his most recent records indicate that he is not experiencing suicidal or homicidal ideation. Further, while the Veteran has reported aggravation and irritability in social situations, the Veteran has not been noted to be a danger to others or himself. In addition, while the Veteran reports that he does not have friends and he and his mother are not close, the Board notes that the Veteran is currently able to reside with his mother, and as such, has some form of relationship with her. Therefore, while some of these symptoms may be contemplated by the 100 percent rating, the overall picture of the Veteran's symptoms continues to mirror the 70 percent category more closely. Moreover, while total occupational impairment is indicated, as discussed in the adjudication of the TDIU claim below, a 100 percent rating requires the presence of both total occupational and social impairment, as well as the contemplation of the Veteran's entire disability picture. Here, total social impairment has not been shown, as the Veteran is currently living with his mother. In addition, the Veteran has not been noted to suffer from symptoms such as gross impairment in thought process of communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation to time or place, and memory loss of his own name or occupation. The Veteran's symptoms noted throughout the period on appeal more closely match those described in the 70 percent rating criteria. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. As the criteria for a 100 percent rating are not met, the Veteran's claim for a rating in excess of 70 percent must be denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran contends that he has been unable to maintain or obtain substantially gainful employment due to his service-connected disabilities. He filed his claim for unemployability based on his service-connected depression on October 3, 2018. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16 (a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the rating to 70 percent or more. For the period on appeal the Veteran has been service-connected for: major depression (70 percent from February 28, 2017), right wrist strain (10 percent from November 17, 2007), tinnitus (10 percent from April 8, 2008), patellofemoral pain syndrome of the right knee (10 percent from August 14, 2012), patellofemoral pain syndrome of the left knee (10 percent from August 14, 2012), hernia (10 percent from January 2, 2012), and right ear hearing loss (0 percent from January 17, 2007). As such, for the entire period on appeal the Veteran has met the schedular criteria. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Turning to the evidence of record, the Veteran has undergone four years of college, but reportedly became too disabled to work as of September 2015. The Veteran reported that he has worked in vocational rehabilitation in advertising, as a Department of Defense contractor in human resources, and in hotels. The Veteran has reported that his last job was in 2016 as an apartment manager. He was terminated from the position. He reported that he was going through major depression, causing everything to pile up. He explained that the job was stressful, and he could not function. At one point he lost his temper with a guest which started from a verbal altercation that escalated to a physical altercation, and he fought with guests. Following this event, he was fired. See Hearing Transcript. In a May 2018 medical note, the Veteran reported that his job search was ongoing, and he felt good, but when too much came on it was overwhelming, and he became afraid he would not measure up. The Veteran's records confirm he was most recently employed from 2015 to 2016 as an apartment manager. Prior to that employment, the Veteran was a Starbucks barista from 2013 to 2015. Before that, the Veteran worked in human resources at the Department of Defense from 2009 to 2010. See VRE Correspondence. In a November 2018 vocational and employment correspondence, it was determined that the Veteran's service-connected disabilities impaired his ability to prepare for, obtain, and/or retain employment. His service-connected disabilities were noted as the cause for limitations which present difficulties for him to prepare for, obtain, and maintain suitable employment in a local labor market. Regarding the Veteran's right wrist strain, he reported that he experienced pain from time to time from overuse of his wrist. He described the pain as joint pain between the wrist and forearm. The Veteran reported that typing, writing, and overuse of hand tools cause him pain. Regarding the Veteran's left and right patellofemoral pain syndrome, the Veteran reported that he experienced pain when engaging in high impact activities. The Veteran stated that he experienced shooting pain at times, and that he worked out several times per week. The Veteran reported that it only hurts when he overexerted himself. As to the Veteran's tinnitus, he reported that he experienced ringing in the ears 2-3 times per week, with the ringing lasting about 30 seconds. Regarding his hernia, the Veteran reported that if he had a heavy cough, he may feel it near the groin area. Lastly, regarding his hearing loss, the Veteran stated that he was unable to understand what people are saying at times. He reported that sometimes when he listens to people, it sounds like Peanuts characters ("whomp, whomp, whomp.") In April 2019 correspondence, the Veteran reported that he was homeless and unemployed, with no income other than what he received from the VA. He reported he was evicted from his home in January 2017, and was currently living with his mother but was not sure how long that would last. The Board notes that the pertinent evidence regarding the Veteran's service-connected depression has been summarized in the section above and additional recitation is not necessary. After consideration of the record, the Board finds that the Veteran has not been able to maintain gainful employment in a non-physical or physical work environment for the entire period on appeal. The Board places high probative value on the Veteran's statements of his symptoms throughout the period on appeal as the Veteran's statements and treatment have been consistent. In addition to his statements, the Veteran's medical records confirm his ongoing treatment for his depression, along with his symptoms and progressive inability to obtain employment due to his anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining work and social relationships, and difficulty adapting to stressful circumstances including work or a worklike setting. In addition to the Veteran's service-connected depression, the Veteran also suffers from service-connected disabilities which impair his ability to perform non-sedentary work, such as his service-connected bilateral patellofemoral knee condition, and his service-connected wrist condition. The Veteran has reported that typing, writing, and overuse of hand tools cause his wrist pain, and that if he overexerts himself his knees cause him difficulty. Moreover, the Veteran suffers from tinnitus and hearing loss, both of which would create difficulty in an office setting, such as interacting with coworkers or using a phone. Therefore, in addition to the Veteran's depression, which causes significant occupational impairment, the Veteran is further impaired from potential other employment options due to his service-connected knee and wrist conditions. Given the restrictions on his employability, and resolving any doubt in favor of the Veteran, the Board finds that the effects of the manifestations of the Veteran's service-connected disabilities combined are sufficiently incapacitating as to result in unemployability in light of the severity of his symptoms, occupational history, and experience. In sum, having carefully considered the Veteran's contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran's favor, the Board finds that the criteria for entitlement to a TDIU have been met for the period on appeal. See 38 C.F.R. § 4.16(a). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Vosburgh, 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.