Citation Nr: 21042814 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-49 601 DATE: July 13, 2021 ORDER Entitlement to individual unemployability is denied. Entitlement to an increased disability rating in excess of 70 percent for major depressive disorder is denied. FINDINGS OF FACT 1. The Veteran's service-connected disabilities do not prevent him from securing and maintaining substantially gainful employment. 2. The evidence of record indicates that the Veteran's major depressive disorder has not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for total disability based on individual unemployability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for an increased disability rating in excess of 70 percent for service-connected major depressive disorder have not been met at any time throughout the entire appellate period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1972 to January 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Board remanded the matters for further development in January 2019. 1. Entitlement to individual unemployability. The Veteran contends that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. Specifically, he has asserted that his major depressive disorder symptoms resulted in him leaving employment in October 2010. See December 2011 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The VA received the Veteran's Application for Increased Compensation based on Individual Unemployability in December 2011. Prior to submitting a formal claim for individual unemployability, the Veteran raised the issue of entitlement to a TDIU as part of his increased rating claim for major depressive disorder, which was received on August 03, 2009. When entitlement to a total disability rating based on individual unemployability is raised in connection with an increased rating claim for one or more service-connected disabilities, the Board has jurisdiction over the issue because it is part of the claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the claim is included in the current appeal. The Veteran's combined rating for his service-connected disabilities is rated 70 percent disabling from October 14, 2010. Service-connected disabilities have, throughout the appeal period, included major depressive disorder and right testicle tenderness, residual of right herniorrhaphy, iliopubic repair. Where a schedular rating is less than total, a total disability rating may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided certain requirements are met. Under 38 C.F.R. § 4.16(a), if there is only one such disability, then this disability shall be ratable at 60 percent or more; if two or more such disabilities, then 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); see also 38 C.F.R. § 4.25. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran reported that he last worked October 2010, he worked self employed as a telemarketer, earning $3000 monthly, at highest. He indicated that the most he earned in one year was in 1997, he earned $60,000 annually. He stated that he missed 30 hours per week due to his major depressive disorder. See December 2011 and December 2013 Applications for Increased Compensation based on Unemployability. Social Security Administration records received December 2013 show the Veteran was determined disabled due to disorder of the back and prostate cancer. These conditions are not service-connected disabilities and cannot be considered in the Veteran's claim for individual unemployability. May 2010 C&P exam the Veteran reported the effects of his mental disorder on his occupational and social functioning are significant. He reported working three to four hours per week on his own business for computer supply sales. He recalled that his business is 17 to 18 years old. He reported that he worked full-time from 1977 to 2004. During a November 2011 VA examination, the Veteran reported that he has worked on a limited basis as a computer supplier. He indicated that he works about 3-4 hours a week and keeps stable working hours. He has limited himself to a select few clients that he has worked with over the years. In a September 2012 private psychological assessment, the psychologist stated that the Veteran unable to work, but does not state due to the impact of what symptoms. The psychologist stated that the Veteran has had to scale back on his activities in alcoholics anonymous (AA) because of the chemotherapy, his depression, and mobility issues secondary to back pain. September 2012 VA examination showed symptoms such as depressed mood, chronic sleep impairment, disturbances of motivation of mood, and difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran reports that he has been classified as disabled by Social Security for the past five years due to a chronic back injury occurring in 2004. The examiner opined that the Veteran's chronic pain and the difficulties associated with chemotherapy treatment have exacerbated the Veteran's depressive symptoms rendering his ability to function and work even more difficult than previously. The main factors impacting his ability to function in a work setting include both depression and back pain. The examiner further stated that the Veteran's depressive disorder do not, of themselves alone, render him unemployable. A May 2013 private medical record states the Veteran's primary and secondary (due to the multiple physical conditions) depression are very difficult to treat (interference of his pain medications narcotics with anti-depressant medications), thus rendering, the Veteran permanently disabled to perform any type of work. In February 2014 VA mental disorder DBQ the Veteran reports that he has not worked in five years due to physical impairment associated with pain, fatigue and medical problems that significantly impair his ability to perform day to day tasks. The examiner opined depression symptoms such as reduced concentration and slowed reactions would likely increase the possibility of someone being accidently injured in a workplace environment that had moving equipment or machinery. The Veteran is likely to have increased absenteeism due to lower motivation. Depression symptoms of impaired low energy, slowed reactions would likely result in decreased productivity. April 2014 VA mental disorder DBQ examiner reported 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. March 2016 medical record stated Veteran with some insight into how his depression is likely related to his significant losses over the past 5 years including physical disability, his inability to work and his cancer diagnosis. October 2019 VA mental disorder DBQ examiner stated after reviewing the medical record and evaluating the claimant, he believed it is less likely than not that he would be able to participate in any gainful employment at this time due to a combination of his physical disabilities and ensuing depression. The Board has considered probative evidence in favor and against the claim, particularly regarding the severity of the limitations his service-connected disabilities. Upon such consideration, however, the Board finds that the preponderance of evidence weighs against the claim. Specifically, the Board finds that the evidence does not support a finding that throughout the appellate period, the Veteran's service-connected disabilities cause his unemployability. In this case, the Board has considered the Veteran's previous telemarketing employment, education level and training, and his major depressive disorder and right testicle tenderness, residual of right herniorrhaphy, iliopubic repair along with non-service-connected cancer, neuropathy, diabetes, COPD, and back/knee disabilities. Here, the evidence shows that throughout the appeal period, although his service-connected disabilities significantly, particularly the major depressive disorder, limited him from obtaining and maintaining employment consistent with his employment and educational background, the service-connected disabilities did not prevent substantially gainful employment. It has been indicated that his non-service-connected cancer, neuropathy, diabetes, COPD, and back/knee disabilities impair his ability to perform the physical duties that are consistent with his telework work experience. Additionally, the Board emphasizes that the mere fact that a Veteran is unemployed, underemployed, or has difficulty obtaining employment is not enough warrant a TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's major depressive disorder showed occupational impairment manifested by impaired concentration and impaired cognition, disturbances of motivation of mood, difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. However, disabling, such symptoms are contemplated by a 70 percent rating and do not, without further evidence, prevent him from securing and maintaining employment. The Board is also cognizant of reports that the Veteran's psychiatric symptoms are debilitating and inconsistent with any effort to pursue gainful employment and that he cannot or is unable to pursue gainful or "suitable" employment due to the impact of major depressive disorder. However, the symptoms outlined within such reports describe difficulty, not inability, obtaining and securing any employment. While his service-connected disabilities have caused vocational impairment, he retains some functional abilities as it relates to managing his major depressive disorder, and has not been deemed incapable of securing and maintaining any employment consistent with his background due to service-connected disabilities alone. Although the Board recognizes that the Veteran's major depressive disorder causes much difficulty and many challenges in maintaining employment, the evidence does not show that he is precluded from all employment by reason of service-connected disabilities. In sum, the Board finds that the Veteran's service-connected disabilities do not prevent substantial gainful employment. To the extent that his service-connected disabilities impact employment, the assigned schedular rating compensates the Veteran for such impairment. Based upon the overall record, the Board finds that throughout the appellate period, the preponderance of the evidence weighs against finding that the Veteran's service-connected disabilities render him unable to secure and follow substantially gainful employment. Thus, the Board finds that the evidence of record does not indicate that TDIU is warranted and the claim must be denied. 38 C.F.R. § 3.321; 3.40; 4.15; 4.16; 4.18; 4.19. 2. Entitlement to an increased disability rating in excess of 70 percent for Major Depressive Disorder. A disability rating is 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 determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Major depressive disorder, DC 9434, is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. In relevant part, the rating criteria are as follows: A 70 percent rating is warranted where there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board finds that based on the review of the lay and medical evidence regarding the Veteran's occupational and social impairment that the disability picture presented by the Veteran's major depressive disorder accurately reflects the Veteran's currently assigned 70 percent disability rating throughout the appellate period. February 2014 mental disorders DBQ reported Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. April 2014 mental disorders DBQ stated the Veteran has 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. June 2015 VA medical record indicates that the Veteran was oriented, had a good memory, a normal fund of knowledge, normal speech, a linear and organized thought process, fair insight and judgment, and no audiovisual hallucinations or paranoia. A May 2016 VA treatment record indicates that the Veteran had no suicidal or homicidal ideation. He had no auditory or visual hallucinations; no mania; no overt paranoia or delusions; no evidence of acute drug or alcohol intoxication; no depressive symptoms. His depression was chronic, moderate, stable, and improves partially with adherence to bupropion and citalopram. It worsens with his chronic medical problems, depressed mood, lethargy, and anhedonia. A September 2016 VA medical treatment record states Veteran denies suicidal ideation and any safety concerns. A July 2017 VA treatment record indicates that the Veteran notes on bad days he has depressive symptoms like passive SI (No intent or plan), poor energy, poor interest in activities, hopelessness and poor sleep. A June 2017 and August 2017 VA treatment records indicates that the Veteran was appropriately dressed and denied audiovisual hallucinations. An October 2019 VA examination indicates that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He has mild memory loss, such as forgetting names, directions or recent events, and no persistent delusions or hallucinations. He has been receiving psychotherapy and medication management to the VA for many years and finds that it is helpful. He has never been psychiatrically hospitalized and has not attempted suicide The Board finds that the overall record does not show that at any time during the appellate period the Veteran's disability manifested by symptoms such 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 as to time or place; memory loss for names of close relatives, own former occupation, or own name. Further, the record does not establish that the Veteran has total occupational and social impairment. In assessing the severity of the Veteran's major depressive disorder, the Board has considered the Veteran's assertions regarding his symptoms, which he is certainly competent to provide. See Layno v. Brown, 6 Vet. App. 465 (1994); 38 C.F.R. § 3.159(a)(2). This includes the correspondence in the record regarding the impact of near continuous depression. See June 2020 and September 2016 supplemental statement of case. However, the criteria needed to support higher ratings require medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of a higher rating for the Veteran's major depressive disorder at any point pertinent to this appeal. The Board has carefully considered the frequency, severity, and duration of the Veteran's reported symptoms as well as the level of impairment contemplated by the various levels delineated in the rating schedule and finds that the disability picture presented by the Veteran's major depressive disorder results in a 70 percent disability rating, but no higher, throughout the entire appellate period. As such, a disability rating in excess of 70 percent for the Veteran's major depressive disorder is not warranted. The Board has considered all manifestations of the service-connected disability, those listed in the schedule criteria and those that are not, and finds that the level of impairment caused by these manifestations does not more nearly meet the criteria for a 100 percent rating; the evidence does not reflect total social and occupational impairment. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Ottley III 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.