Citation Nr: 18124026
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 15-06 628A
DATE:	August 3, 2018
ORDER
Evaluation of a disability rating in excess of 50 percent for major depressive disorder (MDD), with anxious distress and alcohol use disorder, is granted.
Entitlement to a total disability based on individual unemployability (TDIU), effective from June 3, 2014 to August 2, 2016, is granted. 
FINDING OF FACT
1. Prior to April 28, 2017, the Veteran’s MDD resulted in functional limitation most closely approximating occupational and social impairment with deficiencies in most areas. 
2. The Veteran’s reported highest gross earnings per month between 2014 and 2015 remained below the average poverty threshold.
3. The Veteran retired as a security guard on May 27, 2015. 
4. During the period of April 14, 2014 and August 2, 2016, the competent and credible evidence of record demonstrates that the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation.
CONCLUSIONS OF LAW
1. Prior to April 28, 2017, the criteria for an evaluation of 70 percent, but no higher, for MDD have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434.
2. During the period of April 14, 2014 and August 2, 2016, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from March 1984 to February 1987, with additional service for inactive duty for training.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. 
The Veteran initially requested a Board videoconference, but subsequently requested the hearing be canceled and his appeal be forwarded for appellate review. See January 2018 Statement. The hearing request is withdrawn. See 38 C.F.R. § 20.704(e).
In a December 2017 rating decision, the RO increased the disability rating for the Veteran’s service-connected MDD to 70 percent disabling, effective April 28, 2017.  In one January 2018 statement, the Veteran expressed satisfaction with the current rating of 70% for MDD, and in another January 2018 statement, the Veteran disagreed with the effective date of the higher evaluation.  The Board finds that the Veteran explicitly and unambiguously stated satisfaction with the assigned 70 percent rating but maintains that his MDD symptoms more closely approximate a higher rating before April 28, 2017.  As such the Board will limit its analysis to the question of whether an increased rating of 70 percent, but not higher, is warranted prior to April 28, 2017.  See AB v. Brown, 6 Vet. App. 35 (1993).  
The issue of entitlement to a TDIU due to service-connected MDD, lower back disability, bilateral knee disability, and bilateral hip disability has also been raised by the Veteran during the course of this appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (holding that, in the context of an initial adjudication of a claim of entitlement to service connection or in the context of a claim for an increase “a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability”).  However, as the Veteran is in receipt of a 100 percent combined schedular rating effective August 3, 2016, the claim of entitlement to TDIU is moot from the day forward.  As such, the claim period under review for entitlement to a TDIU is from June 3, 2014 to August 3, 2016.  
1. Increased Rating
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; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  
Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.
Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
By way of history, the Veteran filed a claim for an increased evaluation for his service-connected MDD, rated under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9434, in April 2014.  In a December 2017 rating decision, the AOJ awarded a higher rating of 70 percent effective April 28, 2017, the date of a VA mental health examination.  For an increased rating claim, the Board evaluates the severity of the Veteran’s disability from the one-year time period before the Veteran filed his increased-rating claim until VA makes a final decision. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). “The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110(b)(3).  Accordingly, the Board analyzes the Veteran’s disability picture prior to April 14, 2014, but not earlier than April 13, 2013. 
Prior to April 28, 2017, the Veteran’s PTSD was rated as 50 percent disabling.  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; difficulty in establishing and maintaining effective work and social relationships.
A 70 percent rating is assigned 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); inability to establish and maintain effective relationships.  Id. 
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions 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 social and occupational 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).  When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely based on social impairment.  38 C.F.R. § 4.126(b). 
The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Following careful review of the evidence, the Board finds that a higher 70 percent rating is warranted throughout the claim period.  During this period, treatment records and competent lay statements demonstrate that the Veteran’s MDD manifested with deficiencies in family relations, mood, thought, and judgment.  In particular, an August 2014 VA examiner documented symptoms of depression mood, suspiciousness, and chronic sleep impairment.  Further, the Veteran reported that he maintains a close relationship with his daughter and other family members.  In contrast, the Veteran stated that he remains paranoid, agitated, and has suicidal ideations when he is alone.  
Also, he indicated that occasionally he becomes agitated when he is in traffic or in line at a store.  In these stressful moments, he has thoughts of hurting people. The Veteran detailed that on one occasion he was at a gas station and recognized a person who he passed while driving a day earlier.  He claimed that he retrieved a machete from his trunk and approached this person. He stated that, ultimately, he retreated to his car when the person told him that he did not recognize him.  
In a February 2016 VA mental health examination, the Veteran displayed symptoms of chronic sleep impairment, mild memory loss, and difficulty adapting to stressful circumstances.  He reported living with one of his daughters, who he described as a “great support.”  He stated that he maintains contact with his other two stepdaughters.  In addition, the Veteran stated that he thinks of self-harm weekly, but does not have any intent or plan to harm himself.   
The Board finds the Veteran’s history of suicidal ideations a significant factor in granting a higher rating. See Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 435, *19 (Mar. 27, 2017) (holding that suicidal ideation need not be active in nature to warrant the assignment of a 70 percent rating; rather, the appropriate inquiry is whether either passive or active suicidal ideation, in the absence of other symptoms similar to those listed as examples in the criteria for a 70 percent rating, results in social and occupational impairment with deficiencies in most areas).  Also, the Veteran consistently reported anger, depression, anxiety, mild memory loss, and sleep impairment.  Hence, the medical treatment records, from service treatment records to the most recent VA examination, reveal that the severity, frequency, and duration of the Veteran’s anxiety disorder cause reduced reliability and productivity throughout the claim period.
In short, resolving all doubt in the Veteran’s favor, the Board finds that the evidence of record reflects the Veteran’s MDD symptoms resulted in occupational and social impairment with deficiencies in family relations, judgment, thinking, and mood.  Evidence of total occupational and social impairment warranted the assignment of a 100 percent schedular rating is not present.  Thus, the Veteran’s impairment resulted in deficiencies that more nearly approximates the criteria for a 70 percent disability rating throughout the appeal period.
2. TDIU
The issue of TDIU has been raised by the record based on the Veteran’s March 2017 Application for Increased Compensation Based on Unemployability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  The Veteran asserts that his unable to work due to his service-connected disabilities, including MDD, lower back, knees, and bilateral hips. As explained above, the period under review for entitlement to a TDIU is from June 3, 2014 to August 3, 2016. 
VA will grant a 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.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  TDIU benefits are 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 TDIU benefits; 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).
In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant’s nonservice-connected disabilities nor advancing age may be considered.  38 C.F.R. §§ 3.341(a), 4.19 (2016).  Factors to be considered are the Veteran’s education, employment history, and vocational attainment.  See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).
Here, the Veteran meets the schedular requirements for a TDIU between June 3, 2014 and August 3, 2016. During this period, the Veteran’s combined disability rating for hip and associated knee disabilities, to include the neurological and orthopedic manifestations, is rated above 60 percent disabling. See 38 C.F.R. § 4.16.
The next issue is whether the Veteran’s service connected disabilities rendered it impossible to follow a substantially gainful occupation. The term “substantially gainful employment” means “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” See Ferraro, 1 Vet. App. at 332.  In other words, it is an occupation “that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income . . . .” Faust v. West, 13 Vet. App. 342, 356 (2000).
An August 2014 mental health examination recorded the Veteran’s reports that he was worked part-time at an automobile lot as a security guard.  Previously, he working as a psychiatric technician in 2007.  But, he reported that he quit the position because of “medical problems.”
The Veteran’s employer for the security guard position submitted employment information in May 2017.  On the form, the employer, Quick Protection Inc., reported that the Veteran began working in June 2014 and ended employment in July 2015.  During the 12 months preceding the last day of employment, the Veteran earned a gross income of $7,049.25.  
According to the United States Census Bureau, the poverty threshold for one person under the age of 65 was $12,331 in 2015 and $12,316 in 2014.  
In relying on the employer’s May 2017 reporting, the Board finds that the Veteran’s gross annual pay was below the poverty threshold in 2014 and 2015. Accordingly, for purposes of entitlement to a TDIU, the Veteran was not substantially and gainfully employed while working at Quick Protection.  In addition, the record reveals that he did maintain any employment after July 2015.
The Board next addresses the issue whether the Veteran remained unemployable due to his service-connected disabilities. A February 2016 VA examination report recorded the Veteran’s statement that after his hip surgery in 2003-2004 he did not return to work because of the restrictions on his physical duties as a psychiatric technician.  During the April 2017 VA mental health examination, the VA examiner asked the Veteran about how his psychiatric symptoms impact his ability to work.  The Veteran responded that “I don’t think the depression bothered me at work.  I know when I had to stop working because of the pain, the depression really set in.”  
In May 2017, the Veteran was afforded a May 2017 knee and lower leg condition VA examination.  The VA examiner recommended that the Veteran not exceed more than two-hours of weight-bearing on his knees per eight-hour period.  
The Board finds probative the Veterans consistent assertions, specifically on August 2014 and February 2016, that his service-connected depression, knee, and hip disabilities have prevented him from securing substantially gainful employment between June 3, 2014 and August 3, 2016.  
After review of the evidence of record, and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner).  In making that determination, the Board has considered the Veteran’s 
 
high school education, his primary employment as a psychiatric technician and security guard.  Accordingly, resolving all doubt in his favor, the criteria for a TDIU have been met, and entitlement to a TDIU is granted.
 
C. CRAWFORD
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	I. Altendorfer, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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