Citation Nr: 22014690 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-15 635 DATE: March 14, 2022 ORDER The claim of entitlement to an initial rating of 70 percent for major depressive disorder is granted. The claim of entitlement to a rating in excess of 70 percent for major depressive disorder since August 22, 2019, is denied. REMANDED The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the manifestations of the Veteran's major depressive disorder caused occupational and social impairments in most areas, but did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 2. The criteria for a rating in excess of 70 percent since August 22, 2019, for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service with the United States Army from November 2006 to October 2011. The instant matter is on appeal from a February 2013 rating decision. The Board previously remanded these issues in December 2019 and April 2021 for additional evidentiary development. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU rating is part of an appeal for an increased rating claim when such claim is raised by the record. Here, the Board notes that the Veteran has repeatedly asserted that his mental health condition interferes with his ability to maintain gainful employment. As such, the Board finds that the record raises a claim for TDIU. 1. The claim of entitlement to an increased rating for major depressive disorder The Veteran contends that he is entitled to an increased initial rating for his major depressive disorder. More recently, the Regional Office issued a rating decision in July 2020 that staged the percentages of his overall disability rating with an initial rating of 30 percent from October 20, 2011, a rating of 50 percent from June 8, 2016, and a rating of 70 percent from August 22, 2019. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; 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. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can 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 (1999); 38 C.F.R. § 4.2. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's major depressive disorder is rated under Diagnostic Code 9434, 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is 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. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 rating is warranted when 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); and an inability to establish and maintain effective relationships. 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; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but 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, 442-43 (2002). However, 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, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. After a thorough review of the medical and lay evidence of record, the Board finds that an initial rating of 70 percent, but no higher, throughout the entire appeal period is warranted. The Veteran's treatment records reflect significant difficulty with his diagnosed major depressive disorder. In an April 2012 Social Security Administration (SSA) mental health evaluation, the Veteran reported that he experienced anger issues and outbursts of rage. He did not frequently leave the house, and he did not like to be around people as they irritated him. He expressed a history of thoughts of suicide and homicide, but such were not active at the time of the assessment. The Veteran also reported instances of "flipping out", including once such event in December 2011 that required emergency room care. He described varying levels of concentration and attention. On evaluation, the examiner found it difficult to get information from the Veteran. His demeanor was very negative. The examiner concluded that his social functioning was moderately impaired, and his attitude would hinder his ability to contribute in the workplace. At that time, he was independent with his activities of daily living (ADLs). VA treatment records from May 2012 reflect issues with recently reported suicidal ideation. The Veteran reported feeling depressed and admitted to having suicidal thoughts the previous month, but he denied a plan. The examining clinician spoke with the Veteran's mother who expressed more serious reports regarding suicidal ideation at that time. The Veteran later admitted to having a plan the prior month, but he did not follow through. Subsequent VA treatment records reflect only intermittent mental health care with an overall lack of interest in pursuing treatment. In August 2012, the Veteran reported feeling depressed and unmotivated with a lack of energy. He reported another instance of thoughts of suicide the prior month. He also stated that every few months he felt "uneasy, out of breath" and like he could not calm down. On evaluation, he was alert and oriented with attention and memory functions grossly intact. Speech was within normal limits and his communications were typically relevant, but often vague. There was no indication of delusions or responses to internal stimuli. The Veteran underwent a VA examination in November 2012 to assess his mental health. The diagnosis of major depressive disorder was noted. The Veteran reported that he lived with his mother since discharge, but could not "stand it" due to the lack of privacy. He reported otherwise getting along well with his mother, but he was not close with his sister who was incarcerated. He spoke regularly with his son and visited him every two to three months. He had one friend from childhood with whom he spoke about one hour per month. Otherwise, the Veteran said that he did not like people, and he found them annoying. Primarily, the Veteran described staying at home, watched television, and played video games. Occupationally, the Veteran endorsed working as a clerk for almost one year without issue. He earned his commercial driver's license and started driving for two to three months without issue. He previously worked as a delivery driver, though he resigned because he did not like his boss. At the time of evaluation, he was awaiting the start date of a new position driving a forklift. The Veteran described a couple of previous anxiety attacks with one occurring during service and another in July 2011. The VA examiner included a brief discussion of the April 2012 SSA mental health evaluation, finding symptoms similar to that previous report. The examiner also reviewed the Veteran's prior VA treatment records, noting that his treatment was inconsistent. Overall, the examiner reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, and obsessional rituals. The examiner also noted symptoms of anhedonia, amotivation, appetite disturbance, fatigue or low energy, social withdrawal, irritability, and anger. When attempting to assess the Veteran's reported obsessional rituals, the Veteran generally endorsed this symptom but failed to provide any information about its impact. He was very evasive and guarded, thus making it impossible for the examiner to fully assess these symptoms. The examiner also concluded that the Veteran was fully employable and capable of tolerating the stress, work schedule requirements, and interpersonal interactions inherent in any employment setting, though he was most likely to succeed in a position that required limited social interaction. In August 2019, the Veteran's representative submitted a Disability Benefits Questionnaire (DBQ) assessing his major depressive disorder. The reviewing clinician diagnosed both major depressive disorder and obsessive compulsive disorder. Overall, the Veteran's diagnoses caused occupational and social impairment with deficiencies in most areas. His major depressive disorder caused 100 percent of his impairments, and his obsessive compulsive disorder did not cause occupational and social impairment. The clinician noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals, and borderline delusions or hallucinations. On evaluation, he was alert and oriented with reports of a "little spotty" memory. Associations were relevant and the stream of thought was normal. The examiner noted that his major depressive disorder was felt to be mild, though he showed impairments in most areas of occupational and social functioning. In February 2020, the Veteran underwent another VA examination. The examiner assessed major depressive disorder that caused occupational and social impairment with reduced reliability and productivity. He continued to report infrequent social relationships, but a positive relationship with his son. He went to the mall with his son but denied other social activities. The Veteran continued to describe a varying employment history marked with terminations and resignations, as well as short periods of employment. At that time, he worked as a detailer at a new position and had not experienced issues with his supervisors. He endorsed symptoms of irritability with episodes of verbal and physical aggression, difficulty focusing, sleep impairment, periods of down mood, isolation, feelings of detachment and hopelessness, and weekly suicidal ideation without plan or intent. There were no symptoms consistent with mania, lethality, psychosis, or panic. Isolation negatively affected his personal relationships, and irritability negatively affected his effectiveness at work. Symptoms noted by the examiner included depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. On evaluation, he was alert and oriented with fair dress and hygiene. He was calm and cooperative with the examiner. Speech was normal, and there was no indication of a thought disorder. Affect was dysphoric, but there was no emotional blunting or flatness. He denied hallucinations, and there were no delusions or paranoia noted. Insight, judgment, and impulse control were fair. He was cognitively intact, and did not pose a threat of danger or injury to self or others. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is entitled to a 70 percent initial rating for his major depressive disorder, but no higher. The Board recognizes that the Veteran suffered from deficiencies attributable or exacerbated by his PTSD. The Board's determination of the appropriate degree of disability is a finding of fact. In applying the ratings schedule, the Board considers the severity, frequency, and duration of psychiatric symptoms to determine the appropriate disability evaluation. See, e.g., Brewer v. Snyder, No. 15-2800, 2017 U.S. App. Vet. Claims LEXIS 90, at 13 (Vet. App. Jan. 31, 2017); citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). While symptoms are listed under each category for evaluation, the particular symptoms are to be demonstrative of that overall level of severity, frequency, and duration. Mauerhan v. Principi, 16 Vet. App. 436, 442 (U.S. 2002). As such, the Board has considered the symptoms specific to the Veteran throughout the period on appeal, and determined the analogous evaluation pursuant to the ratings schedule in 38 C.F.R. § 4.130. When considering the severity, frequency and duration of the impairments as delineated in the 70 percent evaluation, the Board notes that the symptoms listed present a significant impediment to daily life. Symptoms such as obsessional rituals which interfere with routine activities, near-continuous panic or depression, and the inability to establish and maintain effective relationships, present obstacles to routine functioning on a daily basis. Personal hygiene and grooming are not limited to one particular sphere, but affect work, school, and family relations. Spatial disorientation and intermittently illogical speech are markedly severe symptoms associated with basic cognitive function and the ability to interact with the world. Suicidal ideation, in of itself, represents the impulse or desire to remove oneself from the world entirely. As exemplified by the symptoms listed in this category, the 70 percent evaluation is appropriate for deficiencies that harm most areas of life. Either symptoms are continuous, or near-continuous, or represent such a severity that routine daily functions are chronically impeded. In contrast, the evaluation for a 100 percent impairment includes symptomatology that presents a total impairment to daily functioning. Not only are the representative symptoms of the most severe possible from a psychiatric disorder, but they interfere with the ability to independently engage in activities of daily life. Persistent delusions or hallucinations, disorientation to time or place, and significant memory loss all prevent the person from routine engagement with the world. The ability to even maintain the most basic hygiene standards has been harmed by the severity or frequency of the associated symptomatology. When symptoms of a psychiatric disorder are so severe as to present a total impairment to occupational and social activity, then a 100 percent evaluation should be afforded. Throughout the period on appeal, the Veteran regularly endorsed symptoms of depression, anxiety, sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, and suicidal ideation. He reported difficulty interacting with others, and preferred isolation over social engagement. He had few friends, and he felt his romantic relationships ended due to his mental health symptoms. He engaged in some activities around the house, including watching television. He did, however, regularly communicate with his son, and visited him with increasing frequency through the period on appeal. The Veteran also reported a good relationship with his mother, even if the limited privacy in her home aggravated him. The Veteran had frequent, short periods of employment that ended either with his termination or resignation, but he continued to find new employment opportunities. As noted by mental health evaluations, he would do better in employment that required limited social interaction. While certainly severe, the manifestations of the Veteran's service-connected PTSD in this timeframe do not rise to the level of a total occupational and social impairment for the purposes of 38 C.F.R. § 4.130. His impairments, while touching on many areas of his life, are not of such severity to interfere with routine functions necessary for daily life. The Veteran was consistently alert and oriented in all spheres and maintained his grooming and hygiene. The Veteran's mental faculties remained intact throughout this period. While there was one note in the DBQ of borderline hallucinations or delusions, these symptoms were not elaborated upon, and they are repeatedly denied throughout the rest of the Veteran's medical records. Thus, while that examination provides significant insight into his mental health condition, the Board finds that the report of borderline hallucinations or delusions is unsupported by the examination itself and contradicted by the Veteran and his treatment records. In sum, the Veteran's symptoms do not mirror the severity, frequency, and duration of ones such as gross impairment of thought processes, persistent danger of hurting self or others, and memory loss for names of close relatives or self. He continues to perform his ADLs, including maintaining his hygiene and grooming, as well as managing his funds and maintaining close relationships with some family members. Resolving reasonable doubt in favor of the Veteran, his major depressive disorder causes occupational and social impairment in most areas. While certainly severe, the evidence weighs persuasively against finding that his major depressive disorder more nearly approximates a total occupational and social impairment as contemplated by the rating schedule. Accordingly, a 70 percent initial rating, but no higher, is granted. REASONS FOR REMAND 2. The claim of entitlement to a TDIU Unfortunately, remand is necessary in order to develop the issue of entitlement to a TDIU as raised by the record. The Veteran's work history is not immediately apparent from the record, though there are several notes of short periods of employment followed by either termination or resignation. Thus, remand is needed to clarify his work history, to include periods of unemployment since his initial claim. The matters are REMANDED for the following action: 1. Request that the Veteran complete a VA Form 21-8940, Application for TDIU. Obtain clarification from the Veteran regarding his work history, to include a statement as to his current employment status. All actions to obtain the requested information should be documented in the claims file. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.