Citation Nr: 18154201
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 10-27 624A
DATE:	November 29, 2018
ORDER
Entitlement to a disability rating in excess of 70 percent for major depressive disorder with psychotic features is denied.
REMANDED
Entitlement to an effective date prior to July 18, 2007 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded.
Entitlement to an effective date prior to July 18, 2007 for the grant of basic eligibility to Dependents’ Educational Assistance (DEA) is remanded.
FINDING OF FACT
Throughout the appeal period, the preponderance of the competent and credible evidence of record is against finding that the Veteran’s major depressive disorder with psychotic features was manifested by total occupational and social impairment.
CONCLUSION OF LAW
The criteria for a disability rating in excess of 70 percent for major depressive disorder with psychotic features have not been met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
In accordance with a September 2015 remand, the Agency of Original Jurisdiction (AOJ) issued a statement of the case in August 2017 which denied entitlement to an effective date prior to July 18, 2007 for the assignment of a 70 percent rating for major depressive disorder with psychotic features.  A substantive appeal was not received in response to the August 2017 statement of the case.  Accordingly, the Board finds the Veteran did not perfect an appeal as to the issue of entitlement to an effective date prior to July 18, 2007 for the assignment of a 70 percent rating for major depressive disorder with psychotic features, and therefore that issue is not currently before the Board.  38 C.F.R. §§ 20.200, 20.202.
In an October 2018 brief, the Veteran’s representative addressed the issue of entitlement to an effective date prior to June 8, 2005 for the grant of special monthly compensation based on the loss of use of a creative organ.  However, that issue was previously denied by the Board in the September 2015 decision.
Entitlement to a disability rating in excess of 70 percent for major depressive disorder with psychotic features
A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  
VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
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. 
The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.”  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
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 adjustments during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of examination.  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. 
The Veteran’s major depressive disorder with psychotic features, rated under Diagnostic Code 9434, is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130.  In relevant part, the rating criteria are as follows:
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 that 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 worklike setting); 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; memory loss for names of close relatives, own occupation, or own name. 
The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).
The Board initially notes that, in addition to major depressive disorder with psychotic features, diagnoses of other nonservice-connected mental disorders are of record.  The Board is precluded from differentiating between symptomatology attributed to a service-connected disability and a nonservice-connected disability in the absence of medical evidence which does so.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  Notably, in this case, the medical evidence of record is unclear in distinguishing between the functional impairment caused by the Veteran’s nonservice-connected mental disorders and those caused by his service-connected major depressive disorder with psychotic features.  Resolving all reasonable doubt in the Veteran’s favor, for the purposes of this decision, the Board will consider all of the Veteran’s mental health symptoms to be related to his service-connected major depressive disorder with psychotic features in the adjudication of this claim.
Following careful review of all the evidence of record, to include the Veteran’s VA treatment records and the VA examination reports, the Board finds that total occupational and social impairment, as contemplated by a 100 percent disability rating, is not shown.  See 38 C.F.R. §§ 4.7, 4.130.
First, the Board notes that entitlement to TDIU has been granted during the appeal period due to the functional impairments caused by the Veteran’s service-connected major depressive disorder.  See May 2008 rating decision.  Recent evidence of record indicates the Veteran may not experience total occupational impairment due to his service-connected mental health symptoms, as the Veteran successfully completed a Compensated Work Therapy program as a housekeeper at the local VA Medical Center, and then obtained a full time job in that department for at least three months.  The Veteran has also reported two other periods of employment working in housekeeping.  See, e.g., October 2018 VA Form 21-4140; June 2017 VA vocational rehabilitation therapy progress note; see also January 2017 VA vocational rehabilitation therapy progress note (positive feedback from supervisor regarding work performance).  
However, even if the Board assumes the Veteran has experienced total occupational impairment throughout the appeal period, the Board finds the preponderance of the competent and credible evidence of record is against finding the Veteran’s symptoms result in total social impairment.
The Board acknowledges that the evidence of record indicates the Veteran’s mental health symptoms have negatively impacted his relationships, but finds total social impairment has not been shown.  For instance, the evidence indicates the Veteran’s relationship with a former girlfriend included a lot of conflict, to include acts of violence by both parties often in the context of substance abuse.  However, that relationship continued for nine years during the appeal period, and the Veteran and the girlfriend appear to have lived together during much of that time.  See, e.g., May 2017 VA mental health treatment plan; April 2014 VA examination report.  Further, the evidence of record indicates the Veteran has reported his relationship with his adult daughter as moderately estranged, but his VA treatment records indicate she now lives in the same area as the Veteran, and they do maintain some degree of a relationship.  See, e.g., June 2016 VA vocational rehabilitation therapy plan note; August 2015 VA surgery inpatient note (reported daughter would be with him at home after surgery); January 2015 VA social work discharge note; May 2012 SATP attending note; July 2007 VA physician emergency department note.
Further, the Veteran has reported maintaining supportive relationships with at least some of his siblings, repeatedly naming one of his sisters as being supportive, and reporting living with one of his brothers for a period of time.  See, e.g., December 2016 VA neuropsychiatry evaluation; June 2016 VA vocational rehabilitation therapy progress note; July 2015 VA social work discharge note; April 2014 VA examination report; July 2010 VA social work initial evaluation note; July 2007 VA social work initial evaluation note.  The Veteran has also reported at various times throughout the appeal period that he has lived with friends.  See, e.g., April 2010 VA mental health attending note; May 2008 VA mental health attending note; May 2008 VA examination report; July 2007 VA mental health resident note; see also June 2006 VA examination report.  Finally, the Veteran has also reported going to church as a positive support system for him, and that he developed a friendship with the pastor and his wife.  See, e.g., March 2016 VA SATP group counseling note; January 2011 VA mental health attending note; November 2010 VA mental health attending note.  Accordingly, the Board finds that total social impairment has not been shown.
Finally, the Board notes the Veteran may have met some of the criteria for a 100 percent rating, see Mauerhan, 16 Vet. App. at 442, as the medical evidence of record indicates the Veteran has reported auditory hallucinations, memory loss, suicidal ideation, and periods of violence during the appeal period.  See, e.g., April 2014 VA examination report; May 2008 VA examination report.  However, as discussed above, the Board finds the Veteran’s symptoms, including their frequency, severity, and duration, have not resulted in total occupational and social impairment.  See 38 C.F.R. § 4.130.
Therefore, the Board has considered the Veteran’s claim, and the lay and medical evidence of record, and concludes that based upon the totality of the evidence of record, total occupational and social impairment is not shown.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  Accordingly, entitlement to a disability rating in excess of 70 percent for major depressive disorder with psychotic features is denied.
REASONS FOR REMAND
1. Entitlement to an effective date prior to July 18, 2007 for the grant of TDIU is remanded.
In the May 2008 rating decision, the AOJ granted entitlement to TDIU effective July 18, 2007.  The Veteran contends he is entitled to an earlier effective date as service connection was established for his major depressive disorder with psychotic features in June 2005.  See March 2015 representative statement; see also November 2007 VA Form 21-8940.
The Veteran’s claim for TDIU was part and parcel of his claim for an increased disability rating for his major depressive disorder, as the Veteran contended he could not work due to this disability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); November 2007 VA Form 21-8940.  
Here, the AOJ found the Veteran met the schedular criteria for an award of TDIU under 38 C.F.R. § 4.16(a) as of July 18, 2007, the effective date for the grant of a 70 percent disability rating for the major depressive disorder with psychotic features.  However, it does not appear that the AOJ addressed whether entitlement to TDIU was factually ascertainable on an extraschedular basis within the year prior to the Veteran’s claim.  See 38 C.F.R. §§ 3.400(o); 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).
The Veteran has reported that his service-connected major depression affected his full-time employment in 1999.  See November 2007 VA Form 21-8940.  A May 2008 VA examiner opined that the Veteran’s mental health symptoms were severe enough that the Veteran was not employable, noting the Veteran had difficulty with emotional control and with depressive moods, and that he appeared to be thinking very slowly and had difficulty making decisions and in abstracting.  A January 2007 VA mental health attending note indicated a similar presentation as upon the May 2008 VA examination.  The VA psychiatrist stated the Veteran presented as motorically slowed, and that he appeared sedated at that time, yawned frequently, abruptly left the room during the session, and that it was difficult to get coherent information from the Veteran.  
Accordingly, the Board finds that remand for referral for consideration of entitlement to an earlier effective date for TDIU on an extraschedular basis is required.
2. Entitlement to an effective date prior to July 18, 2007 for the grant of basic eligibility to DEA is remanded.
Finally, because a decision on the remanded issue of entitlement to an earlier effective date for the grant of TDIU could significantly impact a decision on the issue of entitlement to an earlier effective date for the grant of basic eligibility to DEA, the issues are inextricably intertwined.  A remand of the claim is required.
The matters are REMANDED for the following action:
1. Refer the Veteran’s claim of entitlement to an earlier effective date for the grant of TDIU to the Director of the Compensation Service for consideration of whether entitlement to TDIU was factually ascertainable on an extraschedular basis prior to July 18, 2007.
2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an earlier effective date for the grant of basic eligibility to DEA.  If either benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 
DONNIE R. HACHEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Delhauer, 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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