PERSISTENT DEPRESSIVE DISORDER (PDD)

A. YAFFE · 2022 · Case ID: A22021178

GRANTED

Summary

The Veteran, an Army Veteran who served from January 1982 to April 1986, appeals the denial of an increased rating for Persistent Depressive Disorder (PDD) and the denial of Total Disability based on Individual Unemployability (TDIU) and Dependents' Educational Assistance (DEA) effective date. The Board reviewed the Veteran's service records, VA examination reports from January 2017 and February 2020, and lay statements. The January 2017 VA exam found symptoms equivalent to a 50 percent rating, noting lethargy, unkempt appearance, memory impairment, and flattened affect. The February 2020 VA exam found symptoms equivalent to a 70 percent rating, noting irritability, poor concentration, hopelessness, insomnia, low energy, and difficulty maintaining relationships. The Board found the Veteran's symptoms, including suicidal ideation, memory impairment, impaired judgment, neglect of hygiene, and difficulty adapting to stress, more closely approximated the criteria for a 70 percent rating. For TDIU, the Board considered the Veteran's physical disabilities causing pain, coupled with his mental health condition, rendering him unable to focus for substantial gainful employment. The Board granted TDIU and DEA effective August 8, 2016, based on the Veteran's symptoms and the date he applied for an increased rating for PDD. Service connection for PDD was granted at 70 percent for the entire period on appeal.

Rationale

Symptoms approximated 70% rating criteria; Suicidal ideation; Memory impairment; Difficulty maintaining relationships; Difficulty adapting to stress

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

200720-97760

Full Decision Text

Citation Nr: A22021178
Decision Date: 10/19/22 Archive Date: 10/19/22

DOCKET NO. 200720-97760
DATE: October 19, 2022

ORDER

A 70 percent rating is granted for the Veteran's acquired psychiatric disorder, inclusive of persistent depressive disorder (PDD).

Beginning August 8, 2016, entitlement to a total disability rating based on individual unemployability (TDIU) is granted.

An effective date of August 8, 2016, but not earlier, for the grant of entitlement to Dependents Educational Assistance (DEA), is granted.

FINDINGS OF FACT

1. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment.

2. During the appeal period, the Veteran was unable to maintain substantial gainful employment due to service connected disabilities.

3. Given the Board's decision herein, granting entitlement to a TDIU effective August 8, 2016, the Veteran is eligible for DEA under 38 U.S.C. Chapter 35, effective this date.

CONCLUSIONS OF LAW

1. The criteria for a disability rating greater than 70 percent for PDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433.

2. The criteria for TDIU effective August 8, 2016 have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.16.

3. The criteria for an effective date of August 8, 2016, for eligibility to DEA under 38 U.S.C. Chapter 35 are met. 38 U.S.C. §§ 3500, 3501, 5110 (2012); 38 C.F.R. §§ 3.400, 3.807.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the Army from January 1982 to April 1986.

In June 2017, the VA agency of original jurisdiction (AOJ) granted service connection for and assigned a 50 percent rating for PDD, effective August 8, 2016. In August 2017, the Veteran filed a Notice of Disagreement. In January 2019, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The AOJ issued a RAMP HLR decision in March 2019. Thereafter, the Veteran filed a supplemental claim for an increased rating. The AOJ denied the claim in February 2020.

On October 7, 2019, the Veteran filed a formal claim for TDIU. The AOJ granted service connection in March 2020 for TDIU and DEA effective October 7, 2019. This is the decision on appeal for TDIU and DEA.

In the July 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran appealed the claims for PDD, TDIU, and DEA and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal for each claim, respectively. 38 C.F.R. § 20.301.

In letters to the Board that accompanied a September 2017 Notice of Disagreement and January 2019 RAMP Opt-In Election, the Veteran raised the issue of unemployability due to his service-connected disabilities. Among other claims, the September 2017 Notice of Disagreement sought a higher initial rating for PDD and an increased rating for hypertension. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), service connection claims are not considered to include inferred claims for a TDIU. However, at the time TDIU was raised, a claim for an increased rating was pending. In the context of a claim for an increased rating, the letters are sufficient to raise the issue of entitlement to a TDIU. Id. Thus, the Veteran is eligible to be considered for a TDIU as of the date of application for an increased rating for PDD, August 8, 2016.

On October 7, 2019, the Veteran filed a formal claim for TDIU. The AOJ granted TDIU and DEA as
seki, 22 Vet. App. 447 (2009), service connection claims are not considered to include inferred claims for a TDIU. However, at the time TDIU was raised, a claim for an increased rating was pending. In the context of a claim for an increased rating, the letters are sufficient to raise the issue of entitlement to a TDIU. Id. Thus, the Veteran is eligible to be considered for a TDIU as of the date of application for an increased rating for PDD, August 8, 2016.

On October 7, 2019, the Veteran filed a formal claim for TDIU. The AOJ granted TDIU and DEA as of the date of the application and did not consider the fact that the claim for TDIU was raised earlier.

PDD

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability.

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings.

Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999).

Under the General Rating Formula for Mental Disorders, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

The Board finds that the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating during the appeal period.

A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. Id.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id.

A 100 percent rating is assigned 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
speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Id.

Turning to the medical and lay evidence, during a January 2017 VA examination the Veteran reported that he lived with his mother. At the VA examination, the Veteran was somewhat lethargic and unkempt. While he knew the season and day of the week, he did not know the date, month, or year. He was able to remember two words on delayed recall. He was a very poor historian and did not speak clearly. He denied hallucinations and there was no evidence of disordered thought processes or delusions. He denied suicidal and homicidal ideation. He said that he did not like being around people. His symptoms included suspiciousness, memory loss, a flattened affect, impaired judgment, neglect of hygiene, and difficulty establishing and maintaining relationships. The examiner opined that the Veteran experienced symptoms equivalent to a 50 percent rating.

November 2017 medical records indicate that the Veteran felt that he was not himself. He had mood swings, racing thoughts, anger, irritability, and depression. He reported that he was experiencing insomnia, felt his personality changed, and that he was not able to work around people anymore. The Veteran reported that he was unable to control his temper in recent jobs. During his appointment, he had word finding difficulties and memory impairment. The Veteran added that he spent his free time either fishing or caring for his grandson who lived with him.

In March 2018, the Veteran stated he was having family issues and was experiencing stress and poor decision making. Three months later, the Veteran reported trouble falling asleep, little interest in things, feeling down, little energy, and thoughts that he would be better off dead. Later in 2018, he reported walking to the mailbox and taking care of his grandchildren.

During a February 2020 VA examination, the Veteran reported that he was experiencing irritability, and concentration so poor that he could no longer read. He felt hopeless. He added that he was depressed most of the day, overate, had insomnia, low energy, fatigue, low self-esteem, trouble establishing and maintaining relationships, and difficulty managing stress. He reported seeing his grandchildren weekly. The examiner opined that the Veteran experienced symptoms equivalent to a 70 percent rating.

A 70 percent rating is warranted for the entire period on appeal. In January 2017, the Veteran was unaware of the month or year. He was unable to speak clearly, had memory difficulty, impaired judgment, and trouble taking care of his hygiene and appearance. For part of the period on appeal he had suicidal ideation. During the entire period on appeal, he had difficulty maintaining relationships and problems with memory. As of 2018, he had trouble adapting to stress. These symptoms are most closely associated with a 70 percent rating. The Veteran is still capable of visiting and caring for his grandchildren and going fishing. Thus, he does not have a total impairment. As a result, a 70 percent rating is granted for the entire period on appeal.

TDIU

The Veteran seeks a TDIU. He contends that during the period on appeal, his service connected disabilities rendered him unemployable.

A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extrem
is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, 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. Id.

For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table).

The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id.

An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

The Veteran has the following disabilities that are service connected: PDD (70 percent), thrombosis (30 percent), hypertension (10 percent), left upper extremity weakness (10 percent, effective October 7, 2019), left lower extremity weakness (10 percent, effective October 7, 2019), erectile dysfunction (0 percent, effective October 7, 2019).

Based on the forgoing, the Veteran has one disability rated 60 percent or more and at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a).

For the reasons that follow, the Board finds that a TDIU is warranted.

The Veteran worked in the food services department of a VA hospital and on a peach farm. He also received one month of job training from the VA.

In June 2016, while receiving mental healthcare, his psychiatrist stated that due to the Veteran's mental health and the residuals of his cerebral vascular accident (CVA), the Veteran was unable at work at times. In February and June 2017, the Veteran reported that he had pain in his shoulder, hip, and left leg due to his CVA. He was prescribed muscle relaxants for help with sleeping, but according to the Veteran, those did not help during the day.

As mentioned already, in 2017, he was unsure of
a TDIU is warranted.

The Veteran worked in the food services department of a VA hospital and on a peach farm. He also received one month of job training from the VA.

As mentioned already, in 2017, he was unsure of the day and year and trouble speaking. He also had anger control issues. In 2018, he reported making poor decisions and by 2020 he reported lacking so much concentration that he could not read and that he had suicidal ideation.

Given the forgoing, the pain caused by his physical disabilities coupled with his mental health disability would render the Veteran unable to focus for a long enough period of time to engage in substantial gainful activity. Accordingly, a TDIU is warranted.

Dependents' Educational Assistance

Regarding the Veteran's claim for an earlier effective date for DEA benefits pursuant to 38 U.S.C. Chapter 35, the Board finds that an earlier effective date is warranted. The Veteran was awarded eligibility to DEA effective October 7, 2019, based upon the date the RO's grant of entitlement to a TDIU.

Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501 (a)(1), and "initial rating decision" means a decision by VA that establishes the Veteran's total disability as permanent in nature. 38 U.S.C. § 5113(3).

In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807 (a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7).

As the only method of eligibility for Chapter 35 benefits which is relevant to the Veteran is through having a permanent total service-connected disability, the effective date for Dependents' Educational Assistance benefits is directly predicated on the effective date from which VA considered that the Veteran's permanent and total disability commenced for purposes of VA benefits. See 38 C.F.R. § 21.3021(a)(iii), (p), (r). In light of the Board's current finding that it was factually ascertainable that the Veteran's service-connected disabilities rendered him unable to maintain gainful occupation and warranted entitlement to a TDIU since August 8, 2016, an effective date of August 8, 2016, for establishing eligibility for Chapter 35 benefits is also warranted. See 38 C.F.R. § 3.400 (a).

A. Yaffe

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board P. Chalker, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not
), (p), (r). In light of the Board's current finding that it was factually ascertainable that the Veteran's service-connected disabilities rendered him unable to maintain gainful occupation and warranted entitlement to a TDIU since August 8, 2016, an effective date of August 8, 2016, for establishing eligibility for Chapter 35 benefits is also warranted. See 38 C.F.R. § 3.400 (a).

A. Yaffe

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board P. Chalker, Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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