Citation Nr: 1753664 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-08 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent prior to September 14, 2016 and in excess of 50 percent thereafter for a neuropsychiatric condition. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from May 1990 to June 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from December 2010 and September 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In September 2011, the Veteran revoked Disabled American Veterans as his representative before the certification of this appeal. He has not indicated that he desires another representative and demonstrated an intent to individually pursue his claim. Thus, the Board will proceed under the assumption that he wishes to represent himself. In November 2015, the Board remanded the case for additional evidentiary development and it has been returned to the Board for appellate review. In a September 2011 VA Form2 1-4138, the Veteran requested service connection for a lumbar spine disorder. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). It would violate due process for the Board to take jurisdiction without an initial determination by the AOJ. Therefore, the Board does not have jurisdiction over this matter, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). There was substantial compliance with the November 2015 remand directives for the issue on appeal. The AOJ obtained contacted the Social Security Administration (SSA) and obtained records pertinent to a claim filed by the Veteran for disability benefits, as well as VA treatment records dated from June 2011 to January 2017. The Veteran was requested in a September 2016 letter to complete and return VA Forms 21-4142 and 21-4142a in order for VA to obtain his treatment records. In October 2016, the Veteran responded with a completed VA Form 21-4142a for treatment records pertaining to his nonservice-connected colon cancer. In September 2016, he was afforded a VA examination for mental disorders. The case was readjudicated in an April 2017 supplemental statement of the case. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to September 14, 2016, the Veteran's service-connected neuropsychiatric condition was not manifested by occupational and social impairment with reduced reliability and productivity due to psychiatric symptomatology. 2. Since September 14, 2016, the Veteran's service-connected neuropsychiatric condition has not been manifested by occupational and social impairment with deficiencies in most areas due to psychiatric symptomatology. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent prior to September 14, 2016 and in excess of 50 percent thereafter for a neuropsychiatric condition have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 8893-9310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify & Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. VA's duty to notify was satisfied by June 2010 and May 2011 letters. 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the claimant VA examinations, and VA medical opinions, and a hearing before the Board. 38 U.S.C.A. §§ 5103, 5103A. In sum, there is no evidence of any VA error in notifying or assisting him that reasonable affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Higher Ratings for a Service-Connected Neuropsychiatric Condition Disability ratings are determined by applying the criteria set forth in 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.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. When entitlement to compensation has been established and a higher initial evaluation is at issue, such as for the service-connected neuropsychiatric condition in this case, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of a veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The issue of entitlement to service connection for a neuropsychiatric condition was granted in a December 2010 VA rating decision. The Veteran was assigned a 30 percent disability rating for the entire appeal period effective from May 5, 2010. See 38 C.F.R. § 4.130, Diagnostic Code 8893-9310. During the course of the appeal, a 50 percent disability rating was assigned effective from September 14, 2016 in an April 2017 VA rating decision. Id. Since the 30 and 50 percent disability ratings are not the maximum ratings available prior to September 14, 2016 and thereafter, the issue is listed on the title page accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the Board considers whether an initial rating in excess of 30 percent prior to September 14, 2016 and in excess of 50 percent thereafter for a neuropsychiatric condition in this case. Pursuant to the General Rating Formula for Mental Disorders, a rating of 30 percent is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). See 38 C.F.R. § 4.130, Diagnostic Code 8893-9310. A rating of 50 percent rating is warranted 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 per 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. Id. A rating of 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 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); or an inability to establish and maintain effective relationships. Id. A rating of 100 percent, the maximum available, 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; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. The DSM-IV contains Global Assessment of Functioning (GAF) scale, with scores ranging between zero and 100 percent, representing the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The nomenclature employed in the portion of VA's rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The Board notes VA implemented usage of the DSM-5, effective August 4, 2014. As this case was initially certified to the Board in July 2015, the DSM-5 is for application in this case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Initial Rating in Excess of 30 percent prior to September 14, 2016 At a November 2010 VA examination for mental disorders, the Veteran reported some memory problems at times, such as not recalling information at the moment but later remembering; difficulty doing calculations in his head, such as simple math that he used to do during construction work; and difficulties with tremors and jerky muscle movements. He noted his lack of motor control has interfered with his ability to maintain employment as he used to work in construction and operate heavy equipment but now is not capable of doing that. He described his sleep as good, had a good relationship with his mother (with whom he lives) and sister, and had few serious relationships but had never been married because wanted to maintain his independence. He lived with his mother and could not live on his own due to his physical limitations and visited with friends and family but they generally visited him because it was difficult for him to leave. Upon clinical evaluation, the Veteran demonstrated a neatly groomed appearance, spontaneous jerking motions with arms and legs, some signs of tremors clear and discernible speech, appropriate mood and affect, cooperation, orientation in all spheres, unable to complete serial 7's, and able to spell a work backwards correctly. There were also findings no of delusions, hallucinations, or suicidal or homicidal ideation. The VA examiner concluded the Veteran suffers from mild organic deficits. A GAF score of 60 was assigned. At a June 2011 VA examination for mental disorders, the Veteran reported his belief that most of his problems were physical, and not mental, specifically noting tremors, painful joints, weakness, fatigue, and headaches. At times he felt somewhat irritated and aggravated but generally tried to be somewhat upbeat. He noted some nights he slept but other days he did not due to pain, and reiterated his social history as reported at the previous VA examination. He also reported helping with some light household chores and visiting with neighbors. Upon clinical evaluation, the Veteran demonstrated a neatly groomed appearance, spontaneous jerking motions with arms and legs, fair to good eye contact, clear and discernible speech, appropriate mood and affect, cooperation, orientation in all spheres except year, difficulty with delayed recall of a task but not with the immediate recall of a task, unable to complete serial 7's, and able to spell a work backwards correctly. There were also no findings of delusions, hallucinations, or suicidal or homicidal ideation. A GAF score of 58 was assigned. In August 2011, a VA examiner described his symptoms as problems with tremors and memory. It was noted that he presented with difficulties with memory, word finding, and verbal fluency. It was noted that his physical problems were interfering with his activities of daily living, and that his psychiatric symptoms were not. In the February 2014 substantive appeal, VA Form 9, the Veteran reported that his current symptomatology included frequent flashbacks, nightmares, depression, and mood swings. Review of VA treatment records during the appeal period from May 5, 2010 to September 13, 2016 show the following psychiatric symptomatology. In May 2010, the Veteran reported no longer having difficulty with short-term memory and denied suicidal or homicidal ideation. In August 2010, the Veteran reported no history of suicidal attempts, living with his mother, and described his memory and concentration as "fine." He demonstrated clear and coherent speech, euthymic mood, appropriate affect, and fair insight, judgment, and impulse control, and denied suicidal or homicidal thoughts and hallucinations. In February 2011, the Veteran reported having connective memory deficit, decreased concentration, and good family support, and denied any acute distress, hopelessness, helplessness, and feeling suicidal or homicidal. He demonstrated loud speech, euthymic mood, and appropriate affect. In June 2011, the Veteran reported his anxiety symptoms were controlled, maintained current medications, and denied any suicidal thoughts, feeling depressed, hopelessness, or helplessness. He demonstrated logical and relevant speech, euthymic mood, appropriate affect, and fair insight and judgment. In January 2012, the Veteran described his mood as "up and down but pretty good today," and noted anxiety, sleep impairment, low energy, short-term memory problems, and good relationship with his family. He demonstrated an euthymic mood, bright affect, anxiety, cooperation, productive speech, orientation in all spheres, and he denied thoughts of harm to himself or others and history of suicide attempts. In July 2012, the Veteran reiterated short-term memory and anxiety problems, sleep impairment, and low energy. He demonstrated abnormal mood and affect and orientation in all spheres, and there were no findings of delusions, hallucinations, or suicidal or aggressive ideation. In June 2013, the Veteran reported feeling fairly good and in good spirits. He demonstrated clear and relevant speech, euthymic mood, appropriate affect, fair insight and judgment, and he denied suicidal or homicidal thoughts. In November 2013, the Veteran denied feeling depressed, hopeless, helpless, or suicidal. He demonstrated an anxious tone and mood, clear and relevant speech, and did not appear to be a danger to self or others. In February 2014, the Veteran reported he is able to take care of himself and denied suicidal or homicidal thoughts. He appeared slightly anxious but in good spirits, casually dressed, demonstrated clear and coherent speech, neutral mood, appropriate affect, and there were no findings of depressive symptoms. In June 2014, the Veteran reported more anxious and not sleeping well due to left hip pain, and denied feeling depressed, hopeless, helpless, or suicidal. He demonstrated orientation in all spheres, clear and relevant speech, logical thinking, anxious mood, appropriate affect, and fair insight and judgment. In March 2015, the Veteran reported having good family support and taking medication to cope with anxiety, and he denied suicidal or homicidal thoughts. He demonstrated clear and coherent speech, anxious mood, appropriate affect, linear thought process, and fair insight, judgment, and impulse control. In May 2015, the Veteran described his mood as fine and he has hope and denied suicidal and homicidal thought. He demonstrated fair communication, positive attitude, fair eye contact, no acute distress, clear and relevant speech, appropriate affect to mood, intact concentration and memory. In May 2016, the Veteran reported being in good spirits and denied suicidal thoughts. Review of SSA records include a November 2011 mental diagnostic evaluation and intellectual assessment. The Veteran noted having "a lot" of friends, visiting neighbors, and denied any problems with anger, depression, anxiety, or much memory loss despite being told he does. He reported completing some household chores, to include sweeping, mopping, and vacuuming but does not cook or wash clothes. Upon clinical evaluation, he demonstrated an unkempt appearance, irritable mood due to pain, constricted affect, loud speech which the Veteran attributed to his previous employment as a construction worker, circumstantial thought content at times, good attention and concentration, and intact speed of processing for mental tasks. There were no findings of hallucinatory experiences or suicidal or homicidal ideation. After review of the pertinent evidence of record, the Board finds the Veteran's service-connected neuropsychiatric condition was not manifested by occupational and social impairment with reduced reliability and productivity due his psychiatric symptomatology. As discussed above, the Veteran's neuropsychiatric condition was manifested by difficulty with delayed recall of a task but not with the immediate recall of a task, decreased concentration, irritability due to pain, sleep impairment, orientation in all spheres except year on one occasion, anxiety, difficulty doing calculations in his head, unkempt appearance, constricted affect, loud speech, flashbacks, nightmares, depression, mood swings, and continuous medication. His overall psychiatric symptomatology did not rise to the level of severity, frequency, or duration to demonstrate more severe occupational and social impairment at any time during the appeal period to warrant a higher rating. In fact, while he was unemployed, he demonstrated positive relationships with his family and friends, including neighbors, fair insight, fair judgment, fair impulse control, cooperation, ability to groom himself and complete light household chores, fair to good eye contact, and intact speed of processing for mental tasks. The Veteran also consistently denied suicidal plans and ideation, homicidal plans and ideation, hallucinations, and delusions. The frequency and severity of his symptoms are not such that occupational and social impairment with deficiencies in most areas is produced. As such, an initial rating in excess of 30 percent is not warranted from May 5, 2010 to September 13, 2016. See 38 C.F.R. § 4.130, Diagnostic Code 8893-9310. Initial Rating in Excess of 50 percent since September 14, 2016 At the September 14, 2016 VA DBQ examination for mental disorders, the Veteran reported still having a positive relationship with his mother and not involved in a significant relationship. His current mood was "okay" but not great and last job was in 2009 because the tremors were too severe and he could not control the steering wheel. He explained getting stressed because unable to function "like a normal person" and increased sleep impairment at night since having colon cancer. The VA examiner concluded the symptoms, as described by the Veteran, appear to be significantly impairing his social or occupational functioning. The Veteran reported his current social support consists of family, friends, and neighbors and believes this level is adequate. The VA examiner concluded current symptoms include anxiety, chronic sleep impairment, and disturbances of motivation and mood, and best summarized the Veteran's service-connected disability as manifested by occupational and social impairment with reduced reliability and productivity. Review of VA treatment records during the appeal period since September 14, 2016 show that in December 2016 the Veteran reiterated having good friends and staying positive. He was cooperative, presented normal personal hygiene, capable of managing the daily demands of living, alert and oriented in all spheres, memory was intact, speech was clear and appropriate, thought processes were logical and content was appropriate. The Veteran also denied significant anxiety, panic attacks, phobias, obsessions, or compulsions. After review of the pertinent medical and lay evidence of record, the Board finds the Veteran's service-connected neuropsychiatric condition has not been manifested by occupational and social impairment, with deficiencies in most areas due to his psychiatric symptomatology. As discussed above, the Veteran's neuropsychiatric condition has been manifested by anxiety, sleep impairment, disturbances of motivation and mood, and continuous medication. His overall psychiatric symptomatology has not risen to the level of severity, frequency, or duration to demonstrate more severe occupational and social impairment at any time during the appeal period to warrant a higher rating. In fact, he has demonstrated ongoing positive relationships with his family and friends, including neighbors, cooperation, normal hygiene, clear and appropriate speech, logical and appropriate thought processes and content, and the Veteran denied panic attacks, obsessions, compulsions, suicidal plans or ideation, homicidal plans or ideation, hallucinations, and delusions. As such, a rating in excess of 50 percent is not warranted since September 14, 2016. See 38 C.F.R. § 4.130, Diagnostic Code 8893-9310. The Board is aware that the symptoms listed under the next-higher ratings of 50, 70, and100 percent prior to September 14, 2016 and thereafter are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, entitlement to such evaluations requires sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. In this case, the Board has considered the next higher ratings for the appeal periods prior to September 14, 2016 and thereafter but finds that they are rated appropriately. The signs and symptoms manifested are contemplated by the currently assigned ratings of 30 and 50 percent as they do not manifest with the severity required for higher ratings. The Board has also considered the possibility of further staged ratings and finds that the scheduler ratings for the service-connected disability on appeal have been in effect for appropriate periods on appeal. Accordingly, additional staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. ORDER An initial rating in excess of 30 percent prior to September 14, 2016 and in excess of 50 percent thereafter for a neuropsychiatric condition is denied. REMAND Pursuant to the November 2015 remand directives, the AOJ did not obtain the requested opinion by a VA examiner regarding the claim for a TDIU, to include specific consideration of the February 2011 statement by Dr. G.W. The Veteran is entitled to substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following actions: 1. If the Veteran files an appropriate form claiming entitlement to service connection for a lumbar spine disorder, that claim should be adjudicated. 2. Provide the Veteran's claims file to an appropriate clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. Based on a review of the claims file, the examiner must provide a functional assessment of each of the Veteran's individual service-connected disabilities on his ability to work, without consideration of his age or nonservice-connected disabilities. In making a determination, the VA examiner must specifically address the opinion provided by Dr. G.W. in February 2011. The VA examiner must provide a complete rationale for the opinions provided. If the above requested opinion cannot be made without resort to speculation, the VA examiner must state this and provide a rationale for such conclusion. 3. Then, readjudicate the claim for a TDIU on appeal. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs