11-30 654, 11-30 654

Background

Veteran served in USAF (1969–1972); filed for increased rating for service-connected major depressive disorder (MDD) and for TDIU; claims appealed from RO decisions in May 2015 (50% for MDD effective May 27, 2009) and April 2017 (TDIU effective December 5, 2016).
Administrative history: Board hearing in April 2013; MDD increased-rating claim remanded in April 2016; veteran declined a second hearing after judge retirement.
Medical record: treatment notes and VA exams (2011–2016) documenting depressed mood, chronic sleep impairment, memory problems, reduced motivation, intermittent passive suicidal ideation (no plans/attempts), variable social engagement, and functional limitations related to back pain.
Ratings: RO assigned 50% for MDD effective May 27, 2009 and increased to 70% effective December 5, 2016; combined rating was 60% from May 27, 2009–Dec 5, 2016 and 80% thereafter.
VA received TDIU applications/21-8940 forms in June 2009 and May 2014; vocational report (July 2015) opined unemployability since 2009; VA examiners and Director of C&P found capability for at least sedentary work prior to Dec 5, 2016.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether MDD rating >50% before Dec 5, 2016	Veteran: symptoms and functional impact warrant higher rating	VA: record shows only occupational/social impairment with reduced reliability/productivity consistent with 50%	Denied — 50% retained prior to Dec 5, 2016
Whether MDD rating >70% from Dec 5, 2016	Veteran: December 2016 symptoms warrant 100% or >70%	VA: symptoms approximate deficiencies in most areas (70%) but not total occupational/social impairment (100%)	Denied — 70% retained from Dec 5, 2016
Whether effective date for TDIU should be earlier than Dec 5, 2016	Veteran: unemployable due to service-connected disabilities since retirement in 2009; vocational expert supports 2009 onset	VA: threshold schedular criteria for TDIU not met before Dec 5, 2016; medical evidence supports ability for sedentary work pre-Dec 5, 2016	Denied — effective date remains Dec 5, 2016
Whether extraschedular TDIU warranted prior to Dec 5, 2016	Veteran: severity of combined impairments justifies extraschedular TDIU	VA Director & Board: record does not show impairment so severe as to preclude substantially gainful employment prior to Dec 5, 2016	Denied — extraschedular TDIU not warranted prior to Dec 5, 2016

Key Cases Cited

Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir.) (clarifies that ratings require specific symptoms of corresponding severity and that enumerated symptom lists are illustrative)
Mauerhan v. Principi, 16 Vet. App. 436 (Vet. App.) (discusses application of mental disorder rating criteria examples)
Sellers v. Principi, 372 F.3d 1318 (Fed. Cir.) (treatment of illustrative symptom lists in ratings)
Carpenter v. Brown, 8 Vet. App. 240 (Vet. App.) (on use of GAF in VA adjudication)
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (competency of lay testimony)
Caluza v. Brown, 7 Vet. App. 498 (Vet. App.) (duties to assess credibility and weigh evidence)
Gabrielson v. Brown, 7 Vet. App. 36 (Vet. App.) (evaluation of medical evidence and probative value)
Hurd v. West, 13 Vet. App. 449 (Vet. App.) (TDIU treated as an increased-rating claim for effective date rules)
Dalton v. Nicholson, 21 Vet. App. 23 (Vet. App.) (TDIU is an increased compensation award for effective date purposes)
Wood v. Derwinski, 1 Vet. App. 367 (Vet. App.) (procedural principles for effective dates)
Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir.) (one-year ascertainable-date rule for increased ratings)
Van Hoose v. Brown, 4 Vet. App. 361 (Vet. App.) (focus on ability to perform acts of employment, not on finding a job)
Wages v. McDonald, 27 Vet. App. 233 (Vet. App.) (Board’s authority to review extraschedular TDIU referrals)
Kuppamala v. McDonald, 27 Vet. App. 447 (Vet. App.) (Board review of extraschedular ratings)
Gilbert v. Derwinski, 1 Vet. App. 49 (Vet. App.) (benefit-of-the-doubt rule standard)