Citation Nr: 22016248 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 19-32 254 DATE: March 21, 2022 ORDER Entitlement to a disability rating of 70 percent for major depressive disorder is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a disability rating in excess of 70 percent for major depressive disorder is remanded. FINDINGS OF FACT 1. Throughout the appeal, the severity, frequency, and duration of the Veteran's major depressive disorder symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 2. It is reasonably shown that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation throughout the appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1982 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran and his wife presented sworn testimony at a hearing before the undersigned Veterans Law Judge in January 2022. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the increased rating claim on appeal. Rice, 22 Vet. App. 447. 1. Entitlement to a disability rating of 70 percent for major depressive disorder. The Veteran contends that his major depressive disorder is worse than contemplated by the 50 percent disability rating assigned. The Veteran's rating is assigned under Diagnostic Code 9434. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). Under that Formula: A 70 percent disability rating is warranted for 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 worklike setting); inability to establish and maintain effective relationships. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). During the January 2022 hearing, the Veteran testified that his psychiatric disability is getting worse. He stated that he experiences symptoms of irritability, non-existent energy or activity level, impaired memory, difficulty sleeping, feeling disoriented, and difficulty concentrating. The Veteran stated that he showers every 3-4 days because his wife tells him to, he does not go to church or spend time with family other than his mother occasionally, and he uses food as a way of self-medicating. The Veteran testified that his depression has led to weight gain, which has led to the development of sleep apnea and diabetes. In October 2018, the Veteran reported that he has difficulty sleeping and chose to work as a driver so that he could be alone. See also Notice of Disagreement, December 2018; VA Form 9, October 2019. In November 2018, a VA examination was conducted. The Veteran reported impaired memory, difficulty sleeping, feelings of anxiety and depression, and staying at home other than when he must visit the doctor. The examiner noted symptoms of depressed mood, chronic sleep impairment, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, and neglect of personal appearance and hygiene. The examiner concluded that 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. After holistically looking to the frequency, severity, and duration of the Veteran's impairment to assess his disability picture, the Board finds that the evidence of record demonstrates that disability due to the Veteran's psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. Bankhead, 29 Vet. App. at 22. The Board finds that the Veteran's testimony, corresponding lay statements, and medical evidence noting severe symptoms, supports the conclusion that the Veteran's major depressive disorder warrants a higher initial rating. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports at least a 70 percent disability rating for the Veteran's major depressive disorder. 2. Entitlement to a TDIU. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran asserts that the impact of his service-connected disabilities cause him to be unable to secure or follow a substantially gainful occupation. The Board notes that the Veteran's service-connected disabilities combine to meet the schedular criteria for an award of TDIU. As such, the issue before the Board is whether the Veteran is capable of gainful employment. 38C.F.R. §4.16. On his TDIU application, the Veteran reported that he last worked full-time in 2009 as a driver. See VA Form 21-8940, March 2014. The Veteran reported that his education consists of four years of high school and truck driver training. The Board finds that the evidence shows that the Veteran's service-connected disabilities have manifested with signs and symptoms severe enough to preclude him from reasonably securing or maintaining substantially gainful employment consistent with his education and occupational experience. In this regard, the Veteran testified during the January 2022 hearing that the combination of his disabilities makes him unable to work. He noted that he cannot "hear horns." See also VA Form 9, October 2019. Similarly, at the November 2018 VA Hearing Loss Examination, the Veteran reported difficulty hearing and understanding what people say and difficulty concentrating. The Veteran's ability to carry out similar work is further limited by manifestations of his service-connected psychiatric disability. Indeed, his depressed mood, flattened affect, sleep impairment, memory impairment, disturbance in mood and motivation, and neglect of personal hygiene noted in the November 2018 VA examination would impair his ability to obtain and maintain employment in most fields as well as his ability to acquire the skills needed to enter a new field of employment. Given the evidence regarding the severity of the Veteran's service-connected disabilities, the Veteran's functional limitations due to his service-connected disabilities, in light of his individual work experience and training, and with the resolution of all reasonable doubt in his favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating throughout the appeal period. See Geib v. Shinseki,733 F.3d 1350 (Fed. Cir. 2013). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 70 percent for major depressive disorder is remanded. The Veteran testified that his major depressive disorder has worsened. Given the Veteran's testimony, and as the most recent examination is from November 2018, the Board finds remand necessary to obtain a new examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). In addition, the Veteran testified that his depression has caused weight gain, which led to the development of sleep apnea and diabetes. The Board notes that although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner v. Tran, 33 Vet. App. 241 (2021). Further, in Morgan v. Wilkie, 31 Vet. App. 162 (2019), the Court held, "VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code." Morgan, 31 Vet. App. at 167. Indeed, the Court stated doing so was necessary to ensure a veteran is appropriately compensated before resorting to § 3.321(b)'s extraschedular provisions. In doing so, the Court held this included secondary service connection. Id.; see also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). In light of the Veteran's testimony, the Board finds that further information is necessary to properly rate, on a schedular basis, all of the manifestations of the Veteran's service-connected psychiatric disability, in this case, to include weight gain, sleep apnea, and diabetes. As such, on remand, a medical opinion should be obtained to determine any symptoms/secondary disability the Veteran may have and whether they are proximately due to his service-connected disability. Morgan; Bailey; Long. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records. 2. Notify the Veteran that he may submit additional lay statements from himself and from other individuals who have first-hand knowledge and/or were contemporaneously informed of the nature, extent, and severity of his psychiatric disability and any related symptomatology. The Veteran should also be notified that he may submit medical evidence pertaining to his psychiatric disability and related symptomology. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. Schedule the Veteran for the appropriate VA examinations (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to ascertain the nature, extent, and severity of his psychiatric disability. The examiner must also opine as to the nature and etiology of the Veteran's diagnosed diabetes and diagnosed obstructive sleep apnea. The examiner must opine as to whether the Veteran's diabetes and/or diagnosed obstructive sleep apnea is caused by or aggravated by the Veteran's service-connected psychiatric disability. The examiner must particularly consider whether obesity was an "intermediate step" between a service-connected psychiatric disability in causing or contributing to any degree of diabetes and/or sleep apnea. The examiner must acknowledge and discuss the Veteran's competent lay statements. A complete rationale should be given for all opinions and conclusions expressed. Please note that separate opinions addressing proximate cause and aggravation are needed. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.