Citation Nr: 18131213
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-45 741
DATE:	August 31, 2018
ORDER
Entitlement to an increased rating for major depressive disorder with generalized anxiety disorder, currently evaluated at 70 percent disabling is denied.
Entitlement to a total disability rating based on individual unemployability (TDIU) is denied.
FINDINGS OF FACT
1. The Veteran’s symptoms more nearly approximated the symptomatology associated with a 70 percent rating.
2. The evidence does not show that the Veteran’s service-connected disability precludes him from obtaining and retaining substantially gainful employment.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an increased rating for major depressive disorder with generalized anxiety disorder, currently evaluated at 70 percent disabling, have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434 (2017).
2. The criteria for entitlement for a TDIU have not been met.  38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1970 to October 1971.  This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2015 rating decision.
The Veteran did not request a Board hearing.
1. Entitlement to an increased rating for major depressive disorder with generalized anxiety disorder, currently evaluated at 70 percent disabling
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10 (2017). Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
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 at 594; See also 38 C.F.R. §§ 4.1, 4.2.
The Veteran is seeking an increased rating for his service-connected major depressive disorder with generalized anxiety disorder, which is currently rated in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 9434 (2017) as 70 percent.
A 100 percent evaluation is warranted if there is 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. Id.
Furthermore, 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 at 117-18; 38 C.F.R. § 4.130, DC 9411.
Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission.  The rating agency shall 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).  Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (b).  It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work.  38 C.F.R. § 4.2.
After a review of the record, the Board finds that the impact of the Veteran’s service-connected major depressive disorder with generalized anxiety disorder on his occupational and social functioning does not warrant an evaluation in excess of 70 percent.
The Veteran does not exhibit total occupational and social impairment.  VA treatment records from January 2013 through November 2014 show the Veteran had some audio hallucinations at night, exhibited an anxious or broad affect, anxious, calm or dysthymic mood, denied suicidal ideations or homicidal ideations, had no psychosis, and had logical thoughts.
In November 2014, the Veteran reported ongoing symptoms of insomnia, depression, hypervigilance, nightmares, flashbacks, poor cognition, and panic attacks.  See November 2014 VA treatment records.  The Veteran exhibited a constricted affect, depressed mood, circumstantial and tangential thought process, no audio or visual hallucinations, no suicidal ideations or homicidal ideations, and good mood.  Id.  In December 2014, the Veteran stated he was very moody and very temperamental.  See December 2014 VA treatment records.  He stated he hears doorbells and voices not audible to others.  Id.
In January 2015, the Veteran was cooperative, had a euthymic mood, appropriate affect, and denied suicidal ideations and homicidal ideations.  See January 2015 VA treatment records.  
The Veteran relates he is always depressed, has frequent anxiety attacks, bad mood swings, difficulty controlling his temper and anger, and he is always irritable.  See February 2015 Statement in Support of Claim.
The Veteran was afforded a VA examination in April 2015.  The examiner opined that the Veteran has occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood.  See April 2015 VA examination.  The examiner stated the Veteran loses his temper quite often with his wife and children, is easily aggravated, has had increasing problems, no longer goes to church because of this, and no longer cooks because he has lost interest.  Id.  The Veteran’s symptoms include depressed mood, anxiety, panic attacks more than once a week, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including a work or a worklike setting.  Id.
VA treatment records from May 2015 through December 2017 show the Veteran was cooperative, had an anxious or euthymic mood, had an appropriate and concerned affect, intact thought process and thought content, was obsessive, and denied suicidal ideations and homicidal ideations.
April 2018 VA treatment records show the Veteran occasionally talks to himself and does not think of suicide.  The Veteran experiences headaches, panic attacks, anxiety, mood swings, depression, restlessness, fatigue, and flashbacks.  See February 2016 Correspondence.
The Board finds that the preponderance of the evidence is against a finding of total occupational and social impairment.
The Veteran’s symptoms manifested with broad affect, depressed or euthymic mood, some audio hallucinations, and flashbacks.  The Veteran had no suicidal ideations and homicidal ideations.  The Veteran did not exhibit 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 to warrant a 100 percent rating.
In summary, the Board finds that the 70 percent disability rating assigned for the Veteran’s major depressive disorder with generalized anxiety disorder contemplates the frequency, severity, and duration of his symptoms.
2. Entitlement to a total disability rating due to individual unemployability
The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU.  The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340 (2017).
Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met.  Id.  Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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 ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more.  Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, will be considered as one disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  In circumstances where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment.  38 C.F.R. § 4.16(b).
In reaching such a determination, 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 not be given to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19.
The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator.  Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”).
The Veteran’s major depressive disorder is rated at 70 percent effective October 20, 2011 and meets the schedular criteria for TDIU.
However, the Board finds the Veteran’s service-connected disability does not render him unemployable.  The Veteran was a self-employed paralegal from 1991 to 2004.  See August 2014 Veteran’s Application for Increased Compensation Based on Unemployability.  The Veteran completed two years of college.  Id.  His highest gross earnings per month were $6000.  Id.  The Veteran states he became too disabled to work in 2004 and could no longer do his job due to back and leg injuries.  See SSA Records.
The Veteran stated he last worked in October 2007.  See February 2015 Statement in Support of Claim; February 2016 Correspondence.  He worked as a social security representative and paralegal.  See February 2015 Statement in Support of Claim.  He would get easily confused, had difficulty paying attention, and his mind would go blank for days trying to concentrate.  See February 2016 Correspondence.  The Veteran states he was fired for disagreeing, arguing, and fighting with crew when he worked on shrimp boats and as a fitter and welder.  Id.
Upon VA examination, the examiner stated that the Veteran reported that he last worked in 2004 because of anxiety and depression which affected his job performance.  See April 2015 VA examination.  The Veteran had trouble concentrating, made mistakes, and called in sick at times because of anxiety and panic attacks.  Id.  The VA examiner opined that the Veteran is not unable to secure or maintain gainful employment because of his service-connected depression.  Id.  The examiner found the Veteran would function best in an environment that is loosely supervised and with little interaction with the public.  Id.  His medical conditions and resulting chronic pain appear to have more of a contributing factor to his occupational functioning.  Id.
The Veteran relates he is not able to work even with being loosely supervised and with little interaction with the public.  See August 2015 Statement in Support of Claim.  He states he has difficulty being in a stressful situation and all job settings are stressful to him because he is never sure when he will have a panic attack or mood swings.  Id.
After reviewing the evidence of record, the Board has determined that the preponderance of the evidence is against the Veteran’s claim for entitlement to a TDIU.  The evidence shows the Veteran last worked in either 2004 or 2007 as a paralegal and social security representative.  He maintained employment for thirteen years as a paralegal.  The VA examiner found the Veteran could work in an environment that was loosely supervised and with little interaction with the public.  As noted above, the sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment.  In determining employability, the Veteran’s level of education, special training, and previous work experience is for consideration.  The Board is not persuaded that given the Veteran’s level of education, special training, and previous work experience, his major depressive disorder renders him unemployable.  The Veteran’s statement that “he is not able to work even with being loosely supervised and with little interaction with the public” coupled with records that he could no longer work due to non-service connected disabilities is not persuasive evidence that his major depressive disorder actually renders him unable to secure and follow a substantially gainful occupation.
(Continued on the next page)
 
For these reasons, the Board finds that the medical and lay evidence of record does not persuasively suggest that the Veteran’s major depressive disorder with anxiety precludes him from following a substantially gainful occupation.  Thus, a TDIU is not warranted.
 
TANYA SMITH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Alexia E. Palacios-Peters, Associate Counsel 

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