Citation Nr: 1648521	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  14-31 698	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent prior to January 12, 2016, and in excess of 70 percent thereafter for major depression.

2.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to March 7, 2016.


WITNESSES AT HEARING ON APPEAL

The Veteran, T.K., and C.S.


ATTORNEY FOR THE BOARD

Joshua Castillo, Associate Counsel



INTRODUCTION

The Veteran had active duty service from January 1967 to January 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from March 2013 and February 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  As relevant to the instant adjudication, in March 2013, the RO granted service connection for major depression and assigned an initial 50 percent rating, effective October 7, 2009.  In February 2014, the RO denied entitlement to a TDIU.  

In July 2015, the Veteran and his friends, T.K. and C.S., testified before the undersigned Veterans Law Judge at a Board video-conference hearing.  A hearing transcript has been associated with the record.

In September 2015, the Board dismissed claims of entitlement to an increased rating for bilateral hearing loss and service connection chronic fatigue syndrome, which had also been perfected for appeal, as the Veteran had withdrawn them from appeal.  The Board also remanded the claims for an increased rating for major depression and entitlement to a TDIU for additional development.
 
While on remand, a March 2016 rating decision increased the rating for the Veteran's major depression to 70 percent, effective January 12, 2016, and granted a TDIU, effective March 7, 2016.  The awards of an increased rating for major depression and a TDIU did not constitute full grants of the benefits sought on appeal.  As such, the issues, as characterized on the title page, remain in appellate status.  See AB v. Brown, 6 Vet. App. 35 (1993).  The Board notes that separate appeals regarding the assigned effective dates for the increased rating for major depression and grant of TDIU have been merged with the present appeal as they are fully encompassed hereby.  Such matters now return for final appellate review.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems, and has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  For the entire appeal period stemming from the October 7, 2009, date of service connection, the Veteran's major depression is manifested by occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, without more severe manifestations that more nearly approximate total occupational and social impairment.

2.  For the entire appeal period stemming from the October 7, 2009, date of service connection for his major depression, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  From October 7, 2009, the criteria for an initial 70 percent rating, but no higher, for major depression have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2015).

2.  From October 7, 2009, the criteria for entitlement to TDIU have been met.  38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).  

The Veteran's claim of entitlement to a higher initial rating for major depression stems from his disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Further, with regard to his claim for a TDIU, VA's duty to notify was satisfied by a December 2013 letter, sent prior to the issuance of the rating decision addressing such matter in February 2014.  See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. §§§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).

In the instant case, the Board finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues decided herein has been obtained.  The Veteran's service treatment records, post-service VA and private treatment records, and Social Security Administration (SSA) records have been obtained and considered.  He has not identified any additional, outstanding records that have not been requested or obtained.  

The Veteran was provided VA psychiatric examinations in February 2010, February 2011, January 2013, January 2014, and January 2016, and a Social and Industrial Survey was obtained in March 2016.  The Board finds that the examinations are sufficient evidence for deciding the claims.  In this regard, the reports are adequate as they are based upon consideration of the Veteran's prior medical history and examinations, describe the disability in sufficient detail so that the Board's evaluation is a fully informed one, and contain reasoned explanations.  The January 2016 and March 2016 examiners noted that they could not find the transcript from the July 2015 Board hearing; however, such deficiency is immaterial and did not affect their opinions as the Veteran reiterated all of his symptoms, including even more severe symptoms, during the examinations.  The Board further notes that, in August 2011 and October 2014, the Veteran and his ex-wife asserted that the VA examinations then of record did not show the Veteran's episodes of depression and understated the severity of his symptoms.  However, the Board finds that such examinations are adequate as they thoroughly document the Veteran's reported symptoms.  Moreover, in forming its decision herein, the Board considered reports of symptoms from the Veteran, his family, friends, and co-workers.  For these reasons, any alleged inadequacy related to the Veteran's VA examinations is immaterial, and the Board finds that reexamination is not warranted.  Accordingly, VA's duty to assist with respect to obtaining a VA examination and/or opinion has been met.

The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in July 2015.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. 

During the July 2015 hearing, the undersigned Veterans Law Judge noted the issues on appeal.  Additionally, testimony regarding the nature and severity of the Veteran's service-connected major depression was solicited, to include the type and frequency of the symptoms he experiences as a result of such disability, as well as the impact such has on his daily life and employment.  Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully explained.  See Bryant, 23 Vet. App. at 497.  Moreover, as a result of the Veteran's testimony, the Board determined that further evidentiary development was necessary, to include obtaining updated VA medical records and affording him examinations appropriate to his increased rating and TDIU claims.  Under these circumstances, nothing gives rise to the possibility that evidence had been overlooked with regard to the Veteran's claim.  As such, the Board finds that, consistent with Bryant, the undersigned complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record.

Furthermore, Board finds there has been substantial compliance with the Board's September 2015 remand directives and no further action in this regard is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268, 271 (1998)).  In this regard, in September 2015, the matter was remanded in order to obtain updated VA treatment records, which has been completed throughout 2015 and 2016;  afford him a VA examination, which was completed in January 2016; and  afford him a VA Social Industrial Survey, which was completed in March 2016.  Therefore, the Board finds that there has been substantial compliance with the Board's September 2015 remand directives, and no further action in this regard is necessary. 

In light of the foregoing, the Board finds that VA's duties to notify and assist have been satisfied.  Thus, appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II.  Initial Rating Claim

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating 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.A. § 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.  All benefit of the doubt will be resolved in the Veteran's favor.  38 C.F.R.
§ 4.3.

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  

Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time.  See Fenderson v. West, 12 Vet. App. 119 (1999).  As in the instant case, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  Id. at 126.

The Veteran seeks an initial rating in excess of 50 percent prior to January 12, 2016, and in excess of 70 percent thereafter for his service-connected major depression.  In this regard, such disability is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434.  According to 38 C.F.R. § 4.126(a), a mental disorder shall be rated "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 examination."  38 C.F.R. § 4.126(a).

Under Diagnostic Code 9434, a 30 percent rating contemplates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occasional 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; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent 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 work like setting); and an inability to establish and maintain effective relationships.

A 100 percent rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name.

As the United States Court of Appeals for the Federal Circuit recently explained, 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.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (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 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9434.

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).

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) and replace them with references to the recently updated DSM-5.  See 79 Fed. Reg. 149, 45094 (August 4, 2014).  The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014.  VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ.  See 80 Fed. Reg. 53, 14308 (March 19, 2015).  In the instant case, the Veteran's claim was certified to the Board in October 2014 and, as such, the DSM-5 applies to his claim.

In this regard, the Board notes that the DSM-5 removed reference to Global Assessment of Functioning (GAF) scores.  However, to the extent that such were included in the assessment of the Veteran's major depression, the Board will consider them.  In this regard, a GAF score is another component considered to determine the entire disability picture for the Veteran.  The GAF scale is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" from 0 to 100, with 100 representing superior functioning in a wide range of activities and no psychiatric symptoms.  Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (quoting DSM-IV at 32 (4th ed. 1994)).

Although GAF scores are important in evaluating mental disorders, the Board must consider all the pertinent evidence of record and set forth a decision based on the totality of the evidence in accordance with all applicable legal criteria.  Carpenter, supra.  An assigned GAF score, like an examiner's assessment of the severity of a condition, is not dispositive of the percentage rating issue; rather, it must be considered in light of the actual symptoms of a psychiatric disorder (which provide the primary basis for the rating assigned).  See 38 C.F.R. § 4.126(a).  Accordingly, an examiner's classification of the level of psychiatric impairment, by word or by a GAF score, is to be considered but is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  Id.; see also 38 C.F.R. § 4.126, VAOPGCPREC 10-95, 60 Fed. Reg. 43186 (1995).

Initially, the Board finds that the Veteran's service-connected major depression has resulted in social and occupational impairment with deficiencies in most areas, but not total social and occupational impairment, throughout the appellate period stemming from his October 7, 2009, date of service connection.

As early as August 7, 2008, the Veteran's VA mental health provider opined that his psychiatric disorder renders him "no longer employable either on his own behalf or for other employers."  The provider, Dr. K., noted that, over the past year of treatment, the Veteran demonstrated memory loss, anxiety, difficulty concentrating, difficulty maintaining meaningful relationships, difficulty working with others, suspiciousness, and depression.

Significantly, 2008 was the year the Veteran lost his business, and he has not been employed since such time.  His ex-wife, and former business partner, daughter, and former employees noted that irritability, lack of motivation, and inability to communicate with others ultimately caused the business to fail.  See Statements (July 2011).  The Veteran's daughter, ex-wife, and friends report that the Veteran has experienced irritability, forgetfulness, lack of motivation, and episodes of severe depression throughout the appellate period.  They highlighted that the Veteran, once a highly successful entrepreneur, often goes days without showering or leaving the couch.   See id.; Statement, ex-wife (October 2014); Board hearing (July 2015).  They agree that his drastic change, which occurred in the early 2000s has ended most social relationships and strained his familial relationships.  Id.

On VA examination in February 2010, the Veteran reported that his current depression started in service and, in 2002, became a factor in his marriage, which ended in divorce.  With respect to occupational impairment, the examiner opined that depression causes decreased concentration, inappropriate behavior, and poor social interactions.  With respect to the Veteran's usual daily activities, the examiner opined that depression rendered "unable to do chores, shopping, recreational activities" and causes him to "avoid[] going out to socialize."

In June 2010, the SSA found that the Veteran had been disabled since April 2009 due to affective/mood and anxiety related disorders.  At that time, the Veteran reported that he forgets to take his medication; that he tries to read, but cannot focus for more than five to ten minutes; that he does not socialize; irritability; and difficulty with stress and change in his routines.  See SSA, Function Report (July 2010).  A SSA physician examiner opined that the Veteran "could handle complex instructions, but could not sustain even simple tasks due to his depression."  The examiner concluded that the Veteran suffered moderate to marked functional limitation and could not sustain a full work week and "would be unable to appropriately interact with the public, supervisors, or coworkers."  See SSA examination (June 18, 2010).  The examiner assigned a GAF score of 55.

In February 2011, the Veteran was afforded a VA examination to determine whether his current psychiatric disorder was related to service or a service-connected disability.  The Veteran reported a fifteen year history of episodic depression.  He indicated that episodes lasted two or more weeks, during which he experienced loss of joy for life, diminished appetite, difficulty with concentration, hopelessness, and some fatigue.  The Veteran also reported irritability, primarily due to difficulty communicating with others, difficulty concentrating, difficulty making decisions, and a tendency toward isolation.  With respect to relationships, the Veteran reported that he does not like to be around anyone outside his immediate family members, with whom he has good relationships.  He denied suicidal thoughts, mania, panic attacks, obsessions or compulsions, nightmares, and a psychotic history.  With regard to his employment history, the Veteran reported that he had owned a real estate company for about 20 years that closed approximately four years ago.  The examiner diagnosed recurrent, moderate, major depressive disorder, and assigned a GAF score of 55.

In August 2011, the Veteran asserted that the February 2011 VA examiner understated the severity of his depression.  Of note, the Veteran explained that his depression caused him to lose his life's work, including his business, home, cars, and marriage, due to inability to communicate and work with others.  He further explained that he used to love getting together with others and sharing life, but he "could give a damn now."  The Veteran also asserted that the examiner understated the severity of his symptoms, such as his irritability; personal hygiene, which reportedly suffers during periods of depression; and short-term memory loss, which causes dangerous hazards such as leaving the gas stove on all day.  The Veteran also reported that, on account of his symptoms, his ex-wife and daughter help him manage his finances and activities of daily living.

In January 2013, a VA psychiatric examiner rendered a report that is consistent with statements from the Veteran and his ex-wife and daughter.  The examiner reported that the Veteran's service-connected hearing loss causes significant social deficits, which have led to "increased outburst[s] of anger, feelings of hopelessness and subsequent depressive episodes. As a result of his mental illness, he continues to struggle with lack of motivation, fatigue, and chronic irritability.  He has difficulty getting along with others and managing his distress. As a result, many of his past friendships have been terminated and he avoids socializing with others."  The examiner also noted that the Veteran had previously owned a mortgage brokerage until 2009, when he closed the company as he was unable to manage his employees and the subsequent work-related challenges, and noted that he had symptoms of depressed mood, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting.  However, the examiner ultimately determined that the Veteran's major depression resulted in 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, a determination that is consistent with a 30 percent rating under the General Rating Formula.  

In January 2014, a contract examiner opined that the Veteran's psychiatric disorder manifests 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, a determination that is consistent with a 30 percent rating under the General Rating Formula.  However, upon examination, the examiner observed a continuation of previously reported symptoms, to include depressed mood, anxiety, chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships, along with additional symptoms, to include suspiciousness; mild memory loss; circumstantial, circumlocutory or stereotyped speech; difficulty understanding complex commands; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; and neglect of personal appearance and hygiene.

In January 2016, a VA examiner opined that the Veteran's psychiatric disorder manifests with occasional and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.  The examiner observed a continuation of previously reported symptoms with the addition of near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively as well as impaired impulse control, such as unprovoked irritability with periods of violence.

The examiner noted that the Veteran experiences severe episodes of depression, during which he is likely unable to function outside of his home.  He highlighted that the Veteran's current presentation appears more severe than that described in the January 2013 and January 2014 VA examination.  He reasoned that such examinations do not note the Veteran's severe episodes of depression or bouts of aggression.  He did, however, note that the Veteran's description of the episodes is consistent with that in his ex-wife's 2014 statement.

In March 2016, a VA social worker conducted a Social and Industrial Survey and concluded that the Veteran's severe major depression and severe hearing impairment would not be conducive to his safety, the safety of others, or his ability to be employed.  The social worker observed a continuation of previously reported symptoms.

Based on the foregoing, the Board resolves all doubt in favor of the Veteran and finds that, throughout the appellate period, his major depression has been characterized by anxiety, suspiciousness, irritability, outbursts of anger, and impaired impulse control; memory loss; difficulty concentrating; difficulty communicating; difficulty maintaining meaningful relationships and working with others, even inability to establish and maintain effective relationships; depression, lack of motivation, feelings of hopelessness, neglect of personal appearance and hygiene, severe depressive episodes that affect his ability to function independently; obsessional rituals which interfere with routine activities; and difficulty with stress and change in his routines.  The Board finds that these symptoms resulted, at worst, in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.  In reaching such determination, the Board is cognizant that the January 2013 and January 2014 examiners found that the Veteran's psychiatric disability resulted in social and occupational impairment consistent with a 30 percent rating; however, such conclusions seem to be in conflict with the findings noted on each examination.  Furthermore, as noted by the January 2016 VA examiner, while such examinations showed less severe symptoms than those noted at the current time, the Veteran's ex-wife's 2014 statement reflected symptoms consistent with those noted on examination, which were found to result in occupational and social impairment with deficiencies in most areas.  Therefore, as of October 7, 2009, the Board finds that the Veteran's symptoms most nearly approximate the severity and frequency of the symptomatology contemplated by a 70 percent rating.  See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434.

The Board finds that the next higher rating, 100 percent, is not warranted at any time during the relevant appeal period.  While the Veteran's impaired communication; inappropriate behavior; angry outbursts; neglect of personal hygiene; and memory loss are similar to symptoms associated with the 100 percent rating, this level of severity contemplates total occupational and social impairment.  Moreover, such deficiencies must be "due to" the symptoms listed for the 100 percent rating level, "or others or others of similar severity, frequency, and duration."  Vazquez-Claudio, 713 F.3d at 117.  That is, for instance, simply because the Veteran has memory loss and inappropriate behavior, and because the 100 percent level contemplates memory loss and inappropriate does not mean his psychiatric disorder rises to the 100 percent level.  Indeed, the 50 percent, 70 percent, and 100 percent criteria each contemplate some form of memory loss and inappropriate behavior.

The Board finds that the Veteran's communication and behavioral problems (such as irritability, outbursts, and impaired impulse control) are less severe than the gross impairment contemplated by the 100 percent rating.  Moreover, most of his communication problems stem from his hearing loss.  Similarly, the Veteran's lack of personal hygiene occurs predominately during depressive episodes and is not so frequent or severe as to undermine his ability to maintain minimal personal hygiene.  This is evidence by his presentation at the VA examinations.  Finally, the Veteran's short-term memory loss, difficulty concentrating, and distractibility is less severe than the memory loss described at the 100 percent level, which contemplates loss of names or close relatives, own occupation, and own name.  Most importantly, the totality of the Veteran's symptoms do not occur at a severity, frequency, or duration so as to result in total social and occupational impairment.  Indeed, the Veteran suffers severe social impairment; however, he has been able to interact with examiners and reports a "wonderful" relationship with his children.  See Board Hearing (July 2015).  Such positive interpersonal interactions and relationships are not demonstrative of total social impairment.  The Board fully appreciates the severity of the Veteran's occupational impairment, as discussed in detail below, but cannot find that the suffers total social and occupational impairment.  See 38 C.F.R. § 4.130, Diagnostic Code 9411; Vazquez-Claudio, 713 F.3d at 114.  Accordingly, a 70 percent rating, but no higher, for major depression is warranted. 

The Board has also considered whether this claim should be referred for consideration for an extra-schedular rating.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1).

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.  Id.

The Board finds that the first Thun element is not satisfied in the instant case.  In this regard, the Veteran's service-connected major depression is manifested by signs and symptoms such as anxiety, suspiciousness, irritability, outbursts of anger, and impaired impulse control; memory loss; difficulty concentrating; difficulty communicating; difficulty maintaining meaningful relationships and working with others, even inability to establish and maintain effective relationships; depression, lack of motivation, feelings of hopelessness, neglect of personal appearance and hygiene, severe depressive episodes that affect his ability to function independently; obsessional rituals which interfere with routine activities; and difficulty with stress and change in his routines.  These signs and symptoms, and their resulting impairment, are reasonably contemplated by the rating schedule under Diagnostic Code 9434.  Moreover, the Federal Circuit has emphasized that the list of symptoms under a given rating is nonexhaustive.  Vazquez-Claudio, supra.  Consequently, the Board finds that the psychiatric symptoms present in this case are either listed in the schedular criteria or are similar in kind to those listed, as discussed above.  Review of the record does not reveal that the Veteran suffers from any symptoms of psychiatric symptoms that are not contemplated in the nonexhaustive list of symptoms found in the schedular criteria.   

The Board notes that, pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.   However, in Yancy v. McDonald, 27 Vet. App. 484 (2016), the Court stated that "[n]othing in Johnson changes the long-standing principle that the issue of whether referral for extra-schedular consideration is warranted must be argued by the claimant or reasonably raised by the record."  Id. at 495.  The Court held that "the Board is required to address whether referral for extra-schedular consideration is warranted for a Veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities."  Id., citing Thun v. Peake, 22 Vet. App. 111, 115 (2008); Robinson v. Nicholson, 21 Vet. App. 545, 552 (2008).  

In the instant case, while such issue has not been raised by the Veteran or the record, the Board finds that, even after affording the Veteran the benefit of the doubt, as detailed above, there is no additional impairment that has not been attributed to a specific, rated disability.  In this regard, in addition to major depression, the Veteran is service-connected for bilateral hearing loss and tinnitus.  Such disabilities result in decreased hearing acuity and difficulty communicating.  These signs and symptoms, and their resulting impairment, are reasonably contemplated by the rating schedule under Diagnostic Codes 6260 and 6100.  Moreover, the Veteran often becomes anxious, irritable, angry, and depressed, and has difficulty with relationships because of his hearing.  Such resulting impairment is specifically contemplated in the 70 percent rating for his service-connected major depression.  Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with his service-connected major depression, as well as his bilateral hearing loss and tinnitus.  As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Thun, supra; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). 

In adjudicating the Veteran's initial rating claim, the Board has considered the applicability of the benefit of the doubt doctrine.  However, to the extent that an initial rating in excess of 70 percent is denied, the preponderance of the evidence is against such aspect of the claim.  Therefore, the benefit of the doubt doctrine is not applicable to the claim for an initial rating in excess of 70 percent for the Veteran's major depression and such aspect of his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

III.  TDIU

The Veteran contends that the severity of his service-connected disabilities prevented him from obtaining and maintaining gainful employment prior to March 7, 2016.

A total disability evaluation may be assigned when the schedular evaluation is less than 100 percent where a Veteran is 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, this disability shall be ratable at 60 percent or more, or if there are two or more 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. §§ 3.340, 3.341, 4.16(a).

If a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on a different basis.  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 totally disabled.  38 C.F.R. § 4.16(b).  Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  Id.

In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; see also Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000).  A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).

The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16.  The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator.  38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

Initially, the Board finds that, while the Veteran did not file a claim for TDIU until February 2014, the issue of entitlement to a TDIU was raised in connection with his October 7, 2009, claim for major depression.  Specifically, the evidence of severe occupational impairment due to major depression raised the issue of entitlement to a TDIU, which is now before the Board.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

For the entire appeal period stemming from his October 7, 2009, date of service connection for major depression, the Veteran is service-connected for major depression, rated as 70 percent (per the Board's decision above); tinnitus, rated as 10 percent; and hearing loss, rated 0 percent.  

The Veteran's combined rating for compensation purposes since October 7, 2009, is 70 percent.  38 C.F.R. § 4.25.  As he has met the schedular criteria for a TDIU throughout the appeal period, this case turns on whether he has been unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities prior to March 7, 2016.

The record is replete with lay and medical evidence that the Veteran's service-connected hearing loss causes significant difficulty communicating and triggers symptoms of his psychiatric disorder, namely anxiety, irritability, anger, and depression.

The Board finds that the Veteran has a wealth of business experience, but gives significant probative weight to the opinion of the Veteran's primary mental health treatment provider's August 2008 opinion that his service-connected psychiatric disorder renders him "no longer employable either on his own behalf or for other employers."  The Board finds that the opinion is particularly probative in light of statements from the Veteran's ex-wife, daughter, and former employees, who described how he was combative with employees, could not communicate with clients, and experienced severe loss of motivation since the early 2000s.   These reports are also consistent with the SSA examiner's opinion that the Veteran has not been able to work a fulltime job since 2009 and that he "would be unable to appropriately interact with the public, supervisors or coworkers"  See SSA examination (June 2010).

Additionally, early reports from the Veteran's ex-wife and daughter, as well as the January 2013 VA examiner show that the episodes of severe depression, during which the Veteran sleeps or watches television for days on end, has been persistent throughout the appellate period.  Significantly, the January 2016 VA examiner found that such episodes are detrimental to the Veteran's employability.  The Board also finds that the dangerous forgetfulness and inability to hear, which the March 2016 Social and Industrial Survey found were detrimental to the Veteran's employability, have occurred throughout the appellate period.  

Overall, the Board finds that the Veteran's service-connected disabilities preclude him from securing or following substantially gainful employment.   Specifically, his inability to work and communicate with others due to hearing loss triggers his irritability, anxiety, and depression.  As such, the Board concludes that the service-connected disabilities alone are of sufficient severity to produce unemployability.  As such, a TDIU is warranted from the date of the Veteran's October 7, 2009, claim.


ORDER

As of October 7, 2009, an initial rating of 70 percent, but no higher, for major depression is granted, subject to the laws and regulations governing the payment of monetary awards.

As of October 7, 2009, a TDIU, is granted, subject to the laws and regulations governing the payment of monetary awards.



____________________________________________
A. JAEGER
 Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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