Citation Nr: 22016574 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-53 680A DATE: March 22, 2022 ORDER Prior to July 11, 2017, an initial rating in excess of 30 percent for major depressive disorder (MDD) is denied. Since July 11, 2017, an initial 70 percent rating, but no higher, for MDD is granted; subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to total disability based on individual unemployability (TDIU) due solely to service-connected MDD is remanded. Entitlement to special monthly compensation (SMC) at the housebound rate is remanded. FINDINGS OF FACT 1. Prior to July 11, 2017, MDD was manifested by symptomatology demonstrating occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks with symptoms such as depressed mood, chronic sleep impairment, disturbances in motivation and mood, and difficulty concentrating. 2. Since July 11, 2017, the Veteran's MDD has been productive of occupational and social impairment with deficiencies in most areas with symptoms noted as depressed mood, chronic sleep impairment, disturbances in motivation and mood, and suicidal ideation. CONCLUSIONS OF LAW 1. Prior to July 11, 2017, the criteria for an initial rating in excess of 30 percent for MDD were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. Since July 11, 2017, the criteria for an initial 70 percent rating, but no higher, for MDD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1969 to March 1978. The case is on appeal from a March 2014 rating decision in which service connection was granted for MDD, rated 30 percent disabling, effective August 5, 2013. During the course of the appeal, in a December 2021 rating decision, a higher 50 percent rating effective December 3, 2021 was granted. As this represents only a partial grant of the benefit sought, the issue remains on appeal and the Board has recharacterized the issue to reflect the interim grant of benefits. AB v. Brown, 6 Vet. App. 35 (1993). Further, as the regional office (RO) in a December 2017 rating decision granted TDIU effective November 1, 2013 (the date following the Veteran's last day of employment and based on the Veteran's service connected disabilities). The Board previously denied the Veteran's claim of entitlement to an initial rating in excess of 30 percent for MDD in a July 2019 decision. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 memorandum decision, the Court vacated the July 2019 decision and remanded the claim to the Board for further adjudication. In November 2021, the Board remanded the claim to afford the Veteran a new VA examination of his MDD. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As the necessary development has been completed, the Board will decide the claim in this decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As a final matter, in the February 2022 informal hearing presentation (IHP), the Veteran's representative argues that the Veteran's MDD warrants a 70 percent rating and that the Veteran "is unemployable because he cannot focus, concentrate or handle any significant change." In the April 2021 memorandum decision, the Court also indicated that the issue of entitlement to TDIU based solely on MDD and SMC at the housebound rate would be raised by the record to the extent that the Veteran's rating for MDD was increased to 70 percent. Because the Board is granting a 70 percent rating for MDD from July 11, 2017, these issues have been raised by the record. See Akles v. Derwinski, 1 Vet. App. 118 (1991). Entitlement to an initial rating in excess of 30 percent for MDD prior to December 3, 2021 and in excess of 50 percent thereafter General Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran's representative in the February 2022 IHP argues that the Veteran's suicidal ideation, neglect of personal hygiene, and unprovoked irritability warrant a 70 percent rating for the entire appeal period. The representative also argues that the Veteran has "problems functioning independently as shown by his reliance on others for activities of everyday care of the house and yard" and that the Veteran is unemployable because he cannot focus, concentrate, or handle any significant change. Likewise, the Court in the April 2021 memorandum decision ordered the Board to discuss the Veteran's reported suicidal ideation and the effects of his MDD on his employment. The regulations for rating mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that PTSD with bipolar II disorder is evaluated under DC 9411 which is rated according to the General Rating Formula for Mental Disorders. Under Diagnostic Code 9411, a 30 percent rating is assigned where there is 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 assigned 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned when a psychiatric disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating is assigned 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; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In August 2013 correspondence, the Veteran stated that these conditions render him "unable to sleep most night[s], and it [is] hard to concentrate/focus while working my employer tries to accommodate me with these problems," but that his employer was becoming unable to do so. At a February 2014 VA examination, the Veteran reported that he had a good relationship with his girlfriend of 10 years, and that he got along well with his 4 children. He indicated that he socialized with friends and regularly attended church. The Veteran reported that he left his full-time job as a plumber in November 2013 because he was no longer physically able to perform necessary occupational functions, and that he was not seeking alternative work. The Veteran denied experiencing suicidal or homicidal ideations or intent, as well as hallucinations or panic attacks. On examination, the Veteran appeared well groomed. He was well oriented to person, place and time, and speech and eye contact were within normal limits. He answered questions appropriately and made normal eye contact. His insight and judgment appeared intact, and his thought process was within normal limits. The examiner reported that the Veteran's depressive disorder was productive of depressed mood and chronic sleep impairment. The examiner opined that the Veteran's depressive disorder was most productive of a mental condition that was formally diagnosed, but of which symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. In May 2014, the Veteran reported that his depression was worsening because he was unable to work or concentrate. He also stated that he had lost interest in doing the things he used to do and that his social life was down to watching television. At an October 2014 VA examination, the Veteran reported that he lived with his girlfriend of 10 years, and that he enjoyed spending time with his siblings and his daughter who lived nearby. The Veteran reported that he was still unemployed due to his medical conditions. The examiner reported that the Veteran's symptoms had not increased in severity since his February 2014 VA examination. On examination, the Veteran appeared neatly dressed. He presented as pleasant and sincere, and engaged in appropriate eye contact. The examiner reported that the Veteran's depressive disorder was productive of depressed mood, chronic sleep impairment, and disturbances in motivation and mood. The examiner opined that the Veteran's depressive disorder was productive of 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. In a November 2016 VA treatment note, the Veteran reported that his depressive disorder prevented him from working. He indicated that he experienced increased anxiety, depression, and sleep impairment. He reported that he was often unable to concentrate and unable to perform simple tasks. At a July 2017 VA examination, the Veteran reported that he was no longer employed, as he was unable to concentrate on his workload. On examination, the Veteran appeared appropriately groomed and adequately dressed. He presented as cooperative and relaxed. He was well oriented to person, place and time, and his speech and eye contact were normal. His thought process was goal oriented and linear, and his memory, judgment and insight were intact. The Veteran denied experiencing suicidal or homicidal ideations or intent but reported that he experienced passive suicidal thoughts without any intent or plan to commit suicide. The Veteran reported that he lived with his wife, and that he cared for his grandson. He indicated that he would occasionally run errands and go to local stores. The Veteran reported that his siblings visit approximately 1 to 2 times per month. The examiner reported that the Veteran's depressive disorder was productive of depressed mood and disturbances in motivation and mood. The Veteran also reported trouble sleeping, anxiety, agitation, and poor concentration. The examiner opined that the Veteran's depressive disorder was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. An August 2017 VA treatment record also notes that the Veteran reported thoughts that he would be better off dead or of hurting himself in some way for several days. Another August 2017 VA treatment record notes the Veteran's report of being very irritable for several weeks and that his irritability has affected his family. When his son and grandchildren visited for a week, he could not handle the kids screaming and running around, so he went to his brother's house. He also noted kids in his neighborhood who keep making noise and coming onto his back yard at night. The Veteran's psychiatric condition was described as "moderate." An August 2019 VA treatment record reveals reports of sleeping difficulty. The Veteran reported having no energy, watching television all day, and arguing with his spouse. The Veteran denied suicidal and homicidal ideation. A February 2021 VA treatment record notes that the Veteran was still having nightmares and poor concentration as well as suicidal ideation described as unconsciously thinking about it without any specifics to carry it out. He also reported homicidal ideation without specification. The reports also show that on one occasion the Veteran also indicated that he had visual hallucinations. Pursuant to the Board's November 2021 remand, the Veteran was afforded a VA examination of his MDD in December 2021. The examiner characterized the Veteran's MDD as productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform. Symptoms of depressed mood, chronic sleep impairment, flattened effect, and disturbances of motivation and mood were noted. However, no suicidal or homicidal ideation was noted. The Veteran appeared disheveled. He was irritable but cooperative. His thought process was goal-oriented. The examiner stated that the Veteran's MDD contributed only minimally to his social and occupational impairment as most of his social and occupational impairment were due to his physical health issues. Prior to July 11, 2017, an initial rating in excess of 30 percent is not warranted. Prior to the July 2017 VA examination, the Veteran consistently denied suicidal thoughts or intention. Rather, the February 2014 and October 2014 VA examination reports show symptoms of depressed mood, chronic sleep impairment, disturbances in motivation and mood, and difficulty concentrating, all of which are consistent with symptoms best approximating those that warrant a 30 percent rating. Although the Veteran was not working at this time and reported that lack of sleep and difficulty concentrating affected his ability to work, the symptoms reported were described only as difficulty concentrating without more detail. This indicates to mild inability to focus which appears similar in severity to mild memory loss which is listed in the 30 percent criteria. Further, VA examiners consistently found that the Veteran's occupational and social functioning was consistent with occupational and social impairment with only occasional decrease in work efficiency and intermittent inability to perform. Their conclusion is convincing as the VA examiners were able to conduct a thorough and complete examination of the Veteran. During this period in May 2014, the Veteran also reported losing interest in hobbies and having little or no social life, but at the February 2014 VA examination the Veteran described a fuller social life at church. VA examinations also show that the Veteran was socializing with family. The Veteran's restricted social life seems variable and indicative of periods of depression, but not impairment in social or occupational functioning warranting a rating higher than 30 percent for MDD. Therefore, prior to July 11, 2017, a rating in excess of 30 percent for MDD is not warranted. Since July 11, 2017, the Board finds that a rating of 70 percent, but no higher, is warranted. From the record, the Veteran has had periodic suicidal ideation as reported in the July 2017 VA examination report as well as in the August 2017 and February 2021 VA treatment records. The Veteran's suicidal ideation seems to be periodic in nature, as other medical records including the other VA examination reports and the August 2019 VA treatment record do not show suicidal or homicidal ideation. Nonetheless, the Veteran's descriptions of suicidal ideation are detailed and have occurred several times. Thus, a 70 percent rating, but no higher is warranted. See Bankhead v. Shulkin, 29 Vet. App. 10, 1819 (2017). Likewise, it was noted at the December 2021 VA examination that some of the Veteran's occupational and social impairment relates to his MDD specifically rather than his physical disabilities, implying that the Veteran's MDD along with his other service-connected disabilities prevent him from working. This also indicates that a 70 percent rating, but no higher, is warranted for MDD. The Board finds that a 100 percent rating is not warranted. Despite the Veteran's irritability affecting his family, he has found ways to manage his anger. For instance, during his grandchildren's visit, he was able to stay with his brother to defuse the conflict. The record shows that overall the Veteran remains cooperative. Further, it was reported that the Veteran appeared disheveled at the December 2021 VA examination, but the record overall shows that the Veteran's hygiene and grooming have been appropriate. Additionally, although on one occasion a February 2021 mental health nursing note shows that the Veteran indicated that he sees things that aren't there like being hit with an 18-wheeler truck, the Veteran's VA examination reports and medical reports show that he consistently denies auditory and visual hallucinations and delusions. The reports show that the Veteran's thought processes were goal oriented and the Veteran was cooperative. Finally, despite the Veteran's reported suicidal and homicidal ideation, the Veteran has not been reported to be a persistent danger to himself or others. Rather, the Veteran's suicidal ideation is passive and periodic, and there is only one non-detailed report of homicidal ideation. As a result, from July 11, 2017 an initial 70 percent rating, but no higher, for the Veteran's MDD is granted, as this is the earliest ascertainable date of the increase in severity in MDD. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). However, a rating in excess of 30 percent for MDD is not warranted prior to that date. No other staged rating is warranted. 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to TDIU based solely on service connected MDD 2. Entitlement to SMC at the housebound rate In the April 2021 memorandum decision, the Court noted that SMC had not previously been raised by the record because the Veteran did not meet the schedular rating for TDIU based on having one service-connected disability rated at 60% and no single disability would have entitled him to SMC. However, as decided above, the Board has granted a higher 70 percent rating for MDD. Because the grant of a 70 percent rating for MDD raises the issue of whether entitlement to TDIU is warranted based solely on MDD and if so, whether SMC is warranted, additional action is needed. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also February 2022 IHP. In order to ensure due process compliance and to afford the Veteran an opportunity to submit additional evidence and/or argument, the matter is remanded for any action deemed appropriate and adjudication. The matters are REMANDED for the following action: After completing any necessary development, adjudicate the claims of entitlement to TDIU based solely on MDD and SMC. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. George 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.