Citation Nr: 22016572 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-02 387 DATE: March 22, 2022 ORDER Entitlement to a 70 percent rating for service-connected major depressive disorder with panic disorder is granted from November 8, 2013. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted. FINDINGS OF FACT 1. Symptoms of major depressive disorder and panic disorder caused occupational and social impairment with deficiencies in work, school, family relations, and mood. 2. Symptoms of the service-connected psychiatric disorder and bilateral knee disorders rendered the Veteran unable to secure or maintain a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent evaluation for major depressive disorder with panic 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 (DC) 9434. 2. The criteria for entitlement to TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the U.S. Air Force from November 1985 to February 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Sadly, the Veteran died during the pendency of the appeal, and the appellant is his spouse. The appellant testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in October 2021. 1. Entitlement to a 70 percent rating for service-connected major depressive disorder with panic disorder is granted from November 8, 2013. The issue before the Board is whether the Veteran's psychiatric condition warrants higher evaluations throughout the appeal period. The Veteran's psychiatric disorder had been rated at 30 percent prior to April 29, 2015 and at 50 percent on and after that date. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Under the General Formula for Mental Disorders (General Formula) at 38 C.F.R. § 4.130, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Available Social Security Administration (SSA) records include a December 2013 mental status examination report. The report documents the Veteran's symptoms of recurrent and distressing recollections and dreams of traumatic events. He tried to avoid activities, places, and people that aroused recollections of the trauma. He had a diminished interest or participation in significant activities and a restricted range of affect. He had difficulty falling and staying asleep. He also experienced irritability and occasional outbursts of anger. He had difficulty concentrating and was hypervigilant. He had a depressed mood most of the day nearly every day with "several associated features." The Veteran reported he got along with his wife and adult children, as well as his parents and siblings. He also stayed in contact with several friends. He left home once every 2 weeks to go to the grocery store and attended VA once or twice a month. An April 2014 SSA residual functional capacity assessment documents the Veteran was moderately limited in his ability to interact appropriately with the general public and in his ability to accept instructions and respond appropriately to criticism from supervisors. The Veteran was able to learn, remember, and perform work-like activities in settings that did not require more than superficial and occasional interactions with others. An April 2014 SSA adult function report documents the Veteran's psychiatric condition negatively affected his ability to concentrate and comprehend some tasks. His anxiety and panic attacks limited his ability to be around others, and he was lethargic all the time. The Veteran underwent a VA examination in July 2014. At the exam, the Veteran reported that he lived with his wife and spent time with some family members. He enjoyed football and riding his 4-wheeler, but was unable to do things he loved due to his health. He was not affiliated with any group or club, and he was not comfortable in groups of 3 or more. The Veteran had not worked since 2010. A diagnostic depression assessment indicated moderate depression. For VA rating purposes, the examiner identified symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. The Veteran's behavior on observation was within normal limits. The examiner estimated that the Veteran's symptoms 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 and self-care. The Veteran submitted a private mental status examination report and disability benefits questionnaire from psychologist JA in May 2015. JA noted that during the interview the Veteran was nervous, uneasy, skittish, and gave vague information. His concentration was average, attention span was normal, speech patterns were coherent but somewhat uncertain, his ability to abstract was marked by fluctuation between abstract and concrete levels. He reported feeling depressed most of the time and had low energy and fatigue. He also described anxiety attacks that occurred occasionally about every few months and were exacerbated by being around crowds. The Veteran denied suicidal or homicidal ideations. He did not have obsessive thoughts or compulsions, but he was ruminative about his time in service. He denied paranoid ideations, hallucinations, or strange/disturbing thoughts or impulses. He was oriented, and his judgment and insight were average. The Veteran reported his current marriage was great. He denied any interpersonal problems on the job but reported he did leave jobs because of an inability to handle things emotionally. He reported that sleep impairment sometimes caused him to miss work as well. He averaged 4 to 5 hours of sleep per night and had nightmares. For VA rating purposes, JA noted symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. JA wrote that the Veteran's current impairment approximated occupational and social impairment with reduced reliability and productivity. At a June 2015 Decision Review Office (DRO) hearing, the Veteran testified that his sleep issues had worsened, and he mostly stayed at his house. He reported he quit his last job due to mental and physical impairments. He reported his only social life was spending time with his wife and going to medical appointments. He again described panic attacks when he had to be around more than 4 or 5 people. He did not have panic attacks very often if he stayed at home. He reported a panic attack occurred when he visited his grandchildren because of the noise and the amount of people. Regarding his sleep, he reported that he would be awake for 3 to 4 days straight and then sleep for 1 to 2 days at a time. He described an instance of fleeting suicidal ideation but reported he did not have any intent. July 2015 through May 2016 VA treatment notes document psychiatric symptoms of low mood, anhedonia, lack of energy, lack of concentration, decreased sleep, decreased appetite, nightmares, social isolation, and blunted affect. The Veteran underwent another VA examination in July 2016. At the exam, the Veteran reported that his relationship with his wife was very good and he maintained relationships with his adult children and grandchildren, although he did not see them very often. He reported he tended to isolate and did not do much of anything outside his home. He was taking a few online classes and enjoyed reading. He quit his most recent job after a "close call" in Afghanistan and had not worked since then. He stated he could probably do a job if he could only go to work whenever he could, but that was not realistic. He described concentration difficulties with his correspondence classes and stated he did not think he was capable of working. He continued to receive mental health care regularly but had been unable to participate in any group therapy. He reported he had tried to go to a VFW meeting but had a panic attack. For VA rating purposes, the examiner identified symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner estimated that the Veteran's psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. A September 2017 private vocational evaluation report prepared by CV notes psychiatric symptoms of depression, racing thoughts, sleep impairment, fatigue, mood swings, irritability, panic attacks weekly or less often, and low motivation. On the August 2018 substantive appeal, the appellant wrote that the Veteran's panic attacks were so bad that he could not drive, could not concentrate, and could not sleep. His lack of sleep affected his memory, and before his illness that led to his death, he was only comfortable around his wife. He was unable to go to the grocery store or do anything that took him away from the house. Eventually his concentration became so impaired that he could not do yard work. The appellant asserted that the 2016 VA examination did not accurately reflect the Veteran's actual disability level. In August 2018, the Veteran's daughter in law wrote that when the Veteran retired in 2010 he became withdrawn. He had difficulty being around his grandchildren and spent his final years almost in complete seclusion on his farm. His wife took care of all the household duties for him. At the October 2021 Board hearing, the appellant described how the Veteran was unable to sleep well at night and just wanted to be alone during day. He was unable to go to the store because of panic attacks, and when his grandchildren visited he would go for a walk in the woods to escape the noise. She explained that if the Veteran tried to go to the store, he would sweat and have heart attack like symptoms. Although the Veteran did not have panic attacks at home when he was just with the appellant, he was unable to go anywhere without experiencing panic symptoms. She also testified that the Veteran was forgetful, and accidentally left the stove on one night. He also had difficulty remembering to take his medication. She explained the Veteran was unable to manage the household and bills. The appellant explained that she began dating the Veteran while he was still working for USO in Afghanistan, and was familiar with his symptoms throughout the appeal period. She described an incident when they were dating where there was a storm and the Veteran started to run and shout that they were being shot. He then got scared and cried. The appellant's representative characterized the Veteran's symptoms as a near continuous state of panic and a great deal of memory loss. Throughout the appeal, the Veteran's psychiatric symptoms more nearly approximated the 70 percent criteria. The appellant and her representative assert the Veteran's psychiatric condition caused near-continuous panic or depression affecting the ability to function independently. The appellate described how the Veteran was incapable of functioning outside of his home due to the severity of his anxiety, panic attacks, and hypervigilance. Around the home, the Veteran's lack of energy, depressed mood, and concentration problems impaired his ability to manage household duties or finances. The available medical records also show the Veteran had a depressed mood most of the day nearly every day as early as December 2013. That is consistent with a finding of near continuous depression. Those symptoms also approximate difficulty adapting to stressful circumstances listed at the 70 percent criteria. The record also shows other symptoms consistent with the 70 percent criteria such as passive suicidal ideation and irritability with occasional outbursts of anger. The record shows other symptoms that are contemplated by the 50 and 30 percent rating criteria. Those symptoms include blunted and restricted affect, difficulty establishing and maintaining effective work and social relationships, panic attacks weekly or less often, memory loss, disturbances of motivation and mood, anxiety, suspiciousness, and chronic sleep impairment. The unlisted symptom of difficulty concentrating is similar in effect to memory impairment that caused the Veteran to not complete tasks consistent with the 50 percent rating criteria. The unlisted symptoms of diminished interest or participation in significant activities, anhedonia, mood swings, lack of energy, and recurrent and distressing recollections are consistent with disturbances of motivation and mood which is also listed at the 50 percent criteria. Although the evidence shows many symptoms consistent with the 50 percent criteria, the primary focus is the resulting degree of occupational and social impairment. Here, the record shows there is occupational and social impairment with deficiencies in work, school, family relations, and mood. The Veteran's inability to be around or interact with others outside of his home and his concentration issues would impair his ability to work. The Veteran's concentration issues and difficulty completing tasks would impair school related activities. Although the Veteran maintained relationships with extended family members, he was unable to interact with them appropriately in person. Even seeing his grandchildren triggered a panic attack; therefore, there is impairment in family relations. The Veteran's mood was consistently marked by depressed mood, anxiety, low motivation, and low energy. Resolving any reasonable doubt in the appellant's favor, the Veteran's symptoms more nearly approximated the 70 percent rating criteria for the entire period on appeal. The criteria for a 100 percent rating for the service-connected depression and panic disorder are not met. The record does not reflect the symptoms listed at the 100 percent criteria in connection with the Veteran's service-connected disorder. February 2018 VA treatment records document the Veteran was disoriented and delirious, but this was attributed to his end-stage terminal disease and extended hospitalization. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation had not risen to the level contemplated by the 100 percent disability rating. The Veteran denied thoughts, intent, or a plan involving self-harm in existing treatment records. The evidence also does not show total social and occupational impairment due to psychiatric symptoms alone. The Veteran maintained family relationships, albeit not in person, and reported having a great marriage with his wife. The Veteran was able to do some online coursework, and reported that he would be able to work in a setting with flexible, limited hours and limited interaction with others. Overall, the evidence does not show total social and occupational impairment due to symptoms listed at or approximated by the 100 percent criteria. In sum, the criteria for a 70 percent evaluation are met from November 8, 2013, the date VA received the Veteran's claim for increase. 2. Entitlement to a TDIU is granted. The Veteran and the appellant have asserted that the Veteran was unable to secure or follow a substantially gainful occupation due to impairment from his service-connected psychiatric and bilateral knee disabilities. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The percentage requirements for a TDIU are met because the Veteran had two or more service-connected disabilities, one of which is rated as 70 percent disabling, and his combined disability evaluation was at least 70 percent. 38 C.F.R. § 4.16 (a). For the period on appeal, service connection was in effect for the following: major depressive disorder and panic disorder, limitation of flexion of the right knee, lateral instability of the right knee, bilateral metatarsalgia with spurring and gout, kidney stones, left knee degenerative joint disease, tinnitus, hypothyroidism, limitation of extension of the right knee, scar of the right knee, hypertension, cirrhosis, and bilateral hearing loss. The evidence also shows the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities. The Veteran had a career as a dental superintendent during his period of service, and then worked for as aid organization director for 3 years until he retired in 2010. Due to his service-connected disabilities, he was unable to maintain a gainful occupation in the field for which he is trained. The Veteran's psychiatric symptoms prevented him from being around groups of 3 or more, which would impair his ability to interact with clients or coworkers in a variety of settings. The Veteran's significant sleep impairment with resulting fatigue and low energy would impair his ability to work a regular, full-time job. The impairment in memory and concentration would limit the Veteran's ability to perform occupational tasks consistently. In a September 2017 opinion, vocational expert CV opined that the Veteran's psychiatric symptoms impaired his ability to perform non-exertional work and the Veteran would likely have excessive absenteeism. CV also opined that the severity of the Veteran's knee symptoms also precluded any employment that required physical exertion. A July 2016 VA examiner found that due to knee symptoms, the Veteran had marked reduction in physical activity of any kind. The evidence shows the Veteran regularly took opioid medication for his knee pain that impaired his ability to drive or operate machinery. Overall, the persuasive weight of the evidence shows that the Veteran was unable to secure or follow a substantially gainful occupation due to service-connected disabilities since 2010. The criteria for a TDIU are therefore met and the claim is granted. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.