Citation Nr: 22011602 Decision Date: 03/01/22 Archive Date: 03/01/22 DOCKET NO. 13-22 126A DATE: March 1, 2022 ORDER A 50 percent rating, but no more, for depression, prior to October 7, 2019, is granted, subject to the payment of monetary benefits. A total disability rating based on unemployability due to service-connected disabilities (TDIU) prior to October 7, 2019, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from December 1975 to May 1977; he has been 100 percent disabled based on unemployability since October 2019. 2. Prior to October 7, 2019, depression was manifested by subjective complaints of a depressed mood, excessive hypervigilance, hyperawareness, and apprehension, nightmares, chronic insomnia with sleep deprivation; objective findings include depressed mood, suspiciousness, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. 3. Prior to October 17, 2019, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to October 7, 2019, the criteria for a 50 percent rating, but no more, for depression, were met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.56, 4.73, Diagnostic Code (DC) 9411 (2021). 2. The criteria for a TDIU, prior to October 7, 2019, were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.321, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran testified at a May 2016 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. In March 2021, the Board denied the claim for a rating in excess of 30 percent for depression prior to October 7, 2019. The Veteran appealed to the Veterans Claims Court. In October 2021, the Court Clerk granted a Joint Motion for Partial Remand (JMPR), vacated the portion of the March 2021 decision that denied a rating in excess of 30 percent for depression prior to October 7, 2019, and remanded the case to the Board for action consistent with the terms of the JMPR. Increased Rating for Depression Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Further, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Turning to the evidence, an August 2011 VA examiner diagnosed a history of bipolar disorder, depression, and paranoid personality disorder. The examiner noted that 25 percent of the Veteran's overall impairment was due to depression, 75 percent was due to a personality disorder, and there was no current evidence of bipolar disorder. The examiner opined that the Veteran's psychiatric 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. Symptoms included a depressed mood. With respect to social relationships, the Veteran stated that he was married to his wife "who had a drug problem." He indicated that his daughter added to his stress due to her choice of relationships. He denied any hobbies and reported spending most of his free time pursuing legal actions against those whom he believed had wronged him. With regard to occupation, he indicated that he had not worked in 10 years after being let go as a corrections officer following 21 years of service. VA treatment records from late 2012 to mid-2013 reflect mental status examinations indicating that the Veteran had good hygiene and was alert and oriented. Speech was normal rate and rhythm. His mood was euthymic and his affect was congruent. His thought process was productive and regular and his impulse control was good. He denied any suicidal ideation or homicidal ideation, delusions, paranoid ideation or audio or visual hallucinations. His recent and remote memory was intact. His judgment and insight were fair. An April 2013 VA examiner diagnosed a depressive disorder, NOS. The examiner opined that the Veteran's psychiatric 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. Symptoms included a depressed mood. With respect to social relationships, the Veteran stated that he continued to live with his wife and described his marriage as stable. He indicated that he maintained contact with his sister but was unable to describe his hobbies or personal interests, with the exception of stating that he enjoyed his two dogs. The examiner noted that the Veteran did not appear to have any productive use of leisure time or productive hobbies. Regarding his occupation, he reported that he left his job working for the corrections department because he was offered a buyout. In support of his claim, the Veteran submitted three private evaluations dated April 2013, September 2014, and April 2016, from Dr. CB. The private evaluations provided multiple diagnoses, including major depression and posttraumatic stress disorder (PTSD), depression, and major depressive disorder without psychotic symptoms. In all three evaluations, the clinician noted that the Veteran experienced symptoms of deficiencies in family relations, obsessional rituals which interfered with routine activities, persistent irrational fear, intermittently illogical, obscure or irrelevant speech, deficiencies in work or school, depression affecting the ability to function independently, appropriately and effectively, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, inability to establish and maintain effective relationships, and deficiencies in judgment. She also noted that the Veteran would be limited to activities including maintain attention and concentration, perform activities on schedule, maintain regular attendance, to work with others, to set realistic goals or make plans independently, among others. In a June 2016 private evaluation by Dr. AE, the clinician noted a diagnosis of major depressive disorder without psychosis. The clinician indicated that the Veteran experienced symptoms of persistent irrational fear, depression affecting the ability to function independently, appropriately, and effectively, neglect of personal appearance and hygiene, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience and essentially listed the same limitations identified by Dr. CB. In a June 2016 VA Mental Disorder examination, the examiner opined that the Veteran's psychiatric disorder caused 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. Symptoms included depressed mood, suspiciousness, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he had been married for over 30 years and retired from working as a corrections officer in 2000 and had not work since. He indicated that he enjoyed reading and playing with his dog. On examination, the Veteran was neatly dressed and appropriated groomed, mood was irritable and sad and his affect was constricted. His thought process was organized, lucid and goal directed. Speech rate and volume were within normal limited. He denied any issues with obsessive compulsive thoughts or behaviors. He denied any suicidal ideation or homicidal ideation, delusions, paranoid ideation or audio or visual hallucinations. VA treatment records from 2016 to 2019 reflected mental status examinations indicating that the Veteran was groomed appropriately and alert and oriented. Speech was normal rate and rhythm. His mood was euthymic and his affect was congruent with mood. His thought process was normal and coherent and his impulse control was good. He denied any suicidal ideation or homicidal ideation, delusions, paranoid ideation or audio or visual hallucinations. His recent and remote memory was intact. His judgement and insight were fair. The Veteran submitted a private evaluation dated January 2021 from Dr. JR. The clinician noted a diagnosis of major depressive disorder. The clinician indicated that, for the period from December 20, 2010 through October 7, 2019, the Veteran experienced symptoms of deficiencies in work or school, depression affecting the ability to function independently, appropriately, and effectively, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, and unprovoked hostility and irritability. The clinician opined that the Veteran's psychiatric disorder caused occupational and social impairment with difficulties that affected him in such areas as work, family relations, judgment, thinking, and mood during the date range of December 20, 2010 through October 7, 2019. Symptoms included hypervigilance, nightmares, problems with attention and concentration, memory difficulties, withdrawal from social engagement, depressed mood, avoidance of situations, unstable mood swings, panic attacks, feelings of apathy with a vegetative lack of motivation, and paranoid thoughts and/or feelings about other people. Upon evaluation, however, the clinician found that the Veteran was oriented to person, place, and time, and "there was no indication of any substantive difference during the date range of interest." His speech was normal, mood was depressed and the affect was somewhat labile and increased throughout the examination, and "was likely similar during the period from 12/20/2010 through 10/07/2019." Abstract thinking appeared intact and thought process was normal. He denied any hallucinations, delusions, suicidal or homicidal ideations. He was found competent to handle his financial affairs. Based on the above evidence, a 50 percent rating, but no more, is warranted for the period prior to October 7, 2019. In this regard, the June 2016 VA examination identified the Veteran's depressed mood and flattened affect. Further, the examiner found that the Veteran experienced suspiciousness, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The private examinations and clinical treatment records found that he had disturbance of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. Nonetheless, a rating in excess of 50 percent is not warranted. While the private evaluations outlined more severe symptoms of depression, this evidence is inconsistent with the remainder of the record. Significantly, the opinions from Dr. CB, AE, and JR are in contrast to the other opinions, and they do not address any of the contradictory opinions rendered by VA examiners. The Board assigns the private opinions lesser probative value when held in contrast with the remainder of the record. In this regard, the VA examinations and clinical records from this time period reflected that the Veteran was alert and oriented, exercised good insight and judgment, and thoughts and speech were organized and goal oriented. While the private evaluations indicated that the Veteran was unable to establish or maintain effective relationships, this is contradicted by his longstanding marriage and in contradiction of his own statements to the April 2013 and June 2016 VA examiners that he reported that he lived with his wife of over 30 years, described his marriage as stable and maintained contact with a family member. While the January 2021 private clinician found that the symptoms manifested as occupational and social impairment in most areas, the remainder of the evidence did not corroborate that finding. Specifically, the January 2021 clinician found that the Veteran was oriented to person, place, and time, normal speech, normal thought process, intact abstract thinking, did not exhibit spatial disorientation, and that he was without evidence of hallucinations, delusions, suicidal or homicidal ideations or obsessive rituals. He was also found competent to handle his financial affairs. Further, the Veteran consistently denied having suicidal or homicidal ideation, hallucinations or delusions, acts of violence, impaired abstract thinking, or circumstantial, circumlocutory, or stereotyped speech. Thus, the VA examinations and clinical treatment records directly contradict the private clinicians reports of increased symptomatology and unemployability due to depression. While it is apparent that the Veteran continues to have psychiatric symptoms, the evidence does not show that his symptoms were most consistent with a rating in excess of 50 percent as he did not have suicidal ideation, speech that was illogical, obscure, or irrelevant, spatial disorientation, neglect of personal appearance and hygiene, an inability to establish and maintain effective relationships, or symptoms like or similar to symptoms that would support a higher rating. In sum, a rating of 50 percent for PTSD, but no higher, is warranted for this time period and the appeal is granted to this extent. In rendering this decision, the Board has considered the Veteran's lay statements and testimony that his depression is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic code. Such competent evidence concerning the nature and extent of the Veteran's service-connected depression has been provided by the medical personnel who examined him during the current appeal and who rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, a 50 percent rating, but no more, is warranted for the period prior to October 7, 2019. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is already assigned a TDIU from October 7, 2019. As of this decision, prior to October 7, 2019, the Veteran is service connected for depression at 50 percent, degenerative arthritis lumbar spine at 20 percent, left lower extremity (LLE) sciatica at 10 percent, and noncompensable for urticaria. The combined rating was 60 percent. Therefore, the schedular criteria for a TDIU prior to October 7, 2019, are not met. When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities but fails to meet the percentage requirements for a TDIU, the case may be referred to the Director, Compensation Service (Director) for consideration of assignment of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16 (b). However, the evidence does not support that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities for the period prior to October 7, 2019. In the March 2017 VA Form 21-8940, the Veteran indicated that he was unemployable due to all service-connected disabilities. He reported two years of a college education, no additional education or training, and previous employment as a corrections officer at a state prison until 2000 when he retired from the job. There are several medical opinions of record concerning the impact of the Veteran's service-connected disabilities on employment. Turning to the medical evidence, an August 2011 VA examiner opined that the Veteran's psychiatric 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. Symptoms included a depressed mood. With regard to occupation, he indicated that he had not worked in 10 years after being let go as a corrections officer following 21 years of service. An April 2013 VA examiner opined that the Veteran's psychiatric 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. Symptoms included a depressed mood. Regarding his occupation, he reported that he left his job working for the corrections department because he was offered a buyout. In support of his claim, the Veteran submitted three private evaluations in April 2013, September 2014, and April 2016, from Dr. CB and a June 2016 evaluation from Dr. AE. These reports were outlined in more detail above. In essence, all the private evaluations concluded that the Veteran would not be capable of performing gainful employment with the symptoms and limitations from his psychological impairment. Further, in a March 2017 letter, Dr. CB noted that the Veteran was unable to work because of his numerous physical and psychological issues and he should be considered permanently disabled. In a June 2016 VA skin examination, the examiner did not find that the Veteran's urticaria impacted his ability to work. In a June 2016 VA Mental Disorder examination, the examiner opined that the Veteran's psychiatric disorder caused 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. Symptoms included depressed mood, suspiciousness, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that he retired from working as a corrections officer in 2000 and had not work since. On examination, the Veteran was neatly dressed and appropriated groomed, mood was irritable and sad and his affect was constricted. His thought process was organized, lucid and goal directed. Speech rate and volume were within normal limited. He denied any issues with obsessive compulsive thoughts or behaviors. He denied any suicidal ideation or homicidal ideation, delusions, paranoid ideation or audio or visual hallucinations. In an October 2019 VA examination, the Veteran reported working for 21 years as a corrections officer at a prison before he retired from his job. The examiner noted that "his career as a corrections officer seems to be somewhat contentious." The examiner concluded that the Veteran was able to stay at his job for 21 years before retirement. In a February 2019 VA back examination, the Veteran reported his back disability impacted his ability to work in terms of bending and lifting as required by his occupation; however, the examiner did not find that the Veteran was unemployable. The Veteran submitted a private evaluation dated January 2021, from Dr. JR. The clinician indicated that, for the period from December 20, 2010 through October 7, 2019, the Veteran experienced symptoms of deficiencies in work or school; depression affecting the ability to function independently, appropriately, and effectively; deficiencies in mood; difficulty in adapting to stressful circumstances; intrusive recollections of a traumatic experience; and unprovoked hostility and irritability. He further noted that the Veteran's impairment was likely to produce "good days" and "bad days" and that he would have been absent from work more than three times a month during the period. He concluded that the Veteran would not have been capable of performing gainful employment with the symptoms and limitations stemming from his psychological impairment. Upon evaluation, however, the clinician found that the Veteran was oriented to person, place, and time, and "there was no indication of any substantive difference during the date range of interest." His speech was normal. His mood was depressed and his affect was somewhat labile and increased throughout the examination, and "was likely similar during the period from 12/20/2010 through 10/07/2019." His abstract thinking appeared intact, and his thought process was normal. He denied any hallucinations, delusions, suicidal or homicidal ideations. He was found competent to handle his financial affairs. After a complete review of the record, the evidence as a whole does not support a finding of unemployability for the period prior to October 7, 2019. Initially, the VA examiners who evaluated the low back disability, LLE sciatica, and urticaria during the relevant appellate period did not find that he was unemployable as a result of these disabilities. As such, the remaining question before the Board is whether his service-connected depression rendered him unemployable. In this regard, there are several opinions of record. In support of his claim, the Veteran submitted three private evaluations in April 2013, September 2014, and April 2016, and a March 2017 letter from Dr. CB, a June 2016 evaluation from Dr. AE, and a January 2021 private evaluation from Dr. JR. As noted, all the private evaluations concluded that the Veteran would not be capable of performing gainful employment with the symptoms and limitations from his psychological impairment. Significantly, the opinions from Dr. CB, AE, and JR are in contrast to the other opinions, and they do not address any of the contradictory opinions rendered by VA examiners. The Board assigns the private opinions lesser probative value when held in contrast with the remainder of the record. Importantly, several VA examiners found that while the Veteran had some symptoms of depression including depressed mood, suspiciousness, flattened affect, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, they did not render him unemployable. Further, his own statements weigh against the claim. In his April 2013 VA examination, the Veteran reported that he left his job working for the corrections department because he was offered a buyout. At a June 2016 VA examination, he reported that he retired from working as a corrections officer in 2000 and had not worked since. In an October 2019 VA examination, he reported working for 21 years as a corrections officer at a prison before he retired from his job. Thus, the April 2013, June 2016 and October 2019 VA examination records suggest that his unemployment was due to a buy-out and retirement and not due to a service-connected disability. As discussed above, clinical records between from late 2012 to mid-2013 and from 2016 to 2019 reflected that the Veteran was groomed appropriately, good hygiene, and alert and oriented. Speech was normal rate and rhythm. His mood was euthymic and his affect was congruent with mood. His thought process was normal and coherent, and his impulse control was good. He denied any suicidal ideation or homicidal ideation, delusions, paranoid ideation or audio or visual hallucinations. His recent and remote memory was intact. His judgement and insight were fair. The clinical treatment records do not indicate that he was unemployable due to these issues. As such, the over-all disability picture does not show that the Veteran was unable to secure gainful employment due to service-connected depression, degenerative arthritis lumbar spine, LLE sciatica and urticaria prior to October 7, 2019. Although some clinicians have opined that the Veteran was unable to obtain employment between 2010 and 2019, the evidence as a whole does not support a finding of unemployability for the period prior to October 7, 2019. Therefore, the medical evidence does not support a finding of unemployability and referral to the Director is not warranted for entitlement to a TDIU on an extraschedular basis. The Board has considered the Veteran's lay statements regarding his capacity to work. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of symptomatology sufficient to satisfy the requirements of 38 C.F.R. § 4.16(a). Such competent evidence concerning the nature and extent of the Veteran's employability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which his employability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the service-connected disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of unemployability. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.