Citation Nr: 1753748 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 12-07 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased initial rating for an acquired psychiatric disorder, to include anxiety disorder not otherwise specified (NOS) and posttraumatic stress disorder (PTSD), currently rated as 10 percent from September 9, 2010, 30 percent from October 25, 2013, and 50 percent from March 7, 2016. 2. Entitlement to service connection for a heart disability. 3. Entitlement to a total rating due to individual unemployability (TDIU), prior to July 12, 2016. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Kenneth M. Ciardiello, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from July 1966 to December 1969. The Veteran is in receipt of the Combat Action Ribbon and had meritorious service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran and his spouse presented sworn testimony at a hearing before the undersigned in February 2017. The United States Court of Appeals for Veterans Claims (Court) has addressed the scope of a claim in regard to a claimed disability in Clemons v. Shinseki, 23 Vet. App. 1 (2009). In Clemons, the Court held that, in determining the scope of a claim, the Board must consider the Veteran's description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. The evidence of record includes several possible diagnoses pertaining to the Veteran's heart, including atrial fibulation and an irregular heartbeat. Additional symptoms of angina, fatigue, dyspnea, and dizziness, have also been noted. In light of the Court's holding in Clemons and the medical evidence of record reflecting various diagnoses and symptoms pertaining to the Veteran's heart, the Board has expanded the issue on appeal to include all heart disorders. The issue of entitlement to service connection for a heart disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT 1. For the entire appeal period, the Veteran's acquired psychiatric disorder has been manifested by occupational and social impairment with deficiencies in most areas. 2. The most probative evidence of record demonstrates that the Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation consistent with his education and occupational experience, effective September 9, 2010. CONCLUSION OF LAW 1. The criteria for a 70 percent rating for an acquired psychiatric disorder have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU have been met, effective September 9, 2010. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.400, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Increased Rating The Veteran's acquired psychiatric disorder is rated as 10 percent from September 9, 2010, 30 percent from October 25, 2013, and 50 percent from March 7, 2016. He contends that his acquired psychiatric disorder is more severe than the currently assigned rating and that he is entitled to a higher initial rating. Following a review of the relevant evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran's acquired psychiatric disorder warrants a disability rating of 70 percent throughout the appeal period. Disability evaluations are determined by the application of the 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 disorders in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate whenever 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). The Veteran's PTSD is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9400 (2017). Under the General Rating Formula for Mental Disorders, a 30 percent rating 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, and mild memory loss (such as forgetting names, directions, recent events). A 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 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 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. 38 C.F.R. § 4.130, DC 9411 (2017). The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. In addition, in Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017), the Court indicated that the Board must consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating. Further, the Court held that the presence of suicidal ideation alone might cause occupational and social impairment with deficiencies in most areas. Id. The Global Assessment of Functioning (GAF) is a scale reflecting psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing the Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score between 31 and 40 indicates some impairment in reality testing or communication or major impairment in several areas. A GAF score of 41 to 50 is defined as denoting serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A score of 51 to 60 is defined as indicating moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A score of 61 to 70 is defined as indicating some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning but generally functioning pretty well, and has some meaningful interpersonal relationships. See Carpenter v. Brown, 8 Vet. App. 240, 242-244 (1995). The Veteran was afforded a VA examination in connection with this claim in February 2011. During that examination, the Veteran was diagnosed with anxiety disorder NOS. The examiner reported symptoms of depressed mood, difficulty sleeping or even laying down without medication, and panic attacks on a weekly basis made better by medication. The Veteran was oriented to person, place and time, was found to be able to perform activities of daily living, and denied delusions, hallucinations, and memory loss. He was given a GAF score of 64. The examiner stated that the Veteran had PTSD symptoms, but did not meet the full criteria for a diagnosis of PTSD at that time. During an August 2013 consultation, the Veteran's doctor reported that the Veteran has experienced some relief of his psychiatric symptoms due to his prescribed medication. The doctor also at that time diagnosed the Veteran with PTSD. See August 2013 Medical Treatment Record. The Veteran was afforded another VA examination in October 2013. The Veteran exhibited depressed mood, anxiety, and chronic sleep impairment. The Veteran reported panic attacks at least weekly in frequency. The Veteran also reported that he is avoidant of crowds, but denied hallucinations and suicidal ideations. He was found to have adequate judgment and insight. He was given a GAF score of 67. The Veteran's March 2016 VA examiner opined that the Veteran's symptomatology reflects occupational and social impairment with decreased work efficiency. He diagnosed the Veteran with anxiety disorder NOS. The Veteran reported that he spends most of the day in bed watching television because of lack of motivation and difficulty ambulating. He reported that he no long attends church like he once did. The Veteran's symptoms at this examination include depressed mood, anxiety, panic attacks, chronic sleep impairment, disturbances in mood and motivation, and difficulty in establishing and maintaining work and social relationships. The examiner described this as moderate impairment. The Veteran denied hallucinations and delusions; however, he reported having suicidal ideations. During the Veteran's February 2017 hearing, he endorsed symptoms of depressed mood, lack of motivation, short and long-term memory problems, difficulty maintaining relationships with friends and family, weekly depression and panic attacks, avoidance of crowds and family, and suicidal ideations. The Veteran's wife also reported that occasionally she must remind the Veteran to shower. The Veteran testified that his current psychiatric symptoms have been consistent throughout the period on appeal. This was corroborated by his wife. See February 2017 Hearing Transcript at 9. The Veteran and his wife also reported that the Veteran's symptoms have improved with medication. Following a review of the relevant evidence of record, the Board finds that the criteria for a rating of 70 percent have been met throughout the appeal period due to endorsed symptoms of suicidal ideation, neglect of hygiene, and inability to establish and maintain effective relationships. However, a 100 percent rating for total social and occupational impairment is not warranted, as the record does not reflect 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. While the record reflects that the Veteran needs to be reminded to shower occasionally, this does not constitute inability to perform activities of daily living, and is in fact more appropriately contemplated in the 70- percent rating criteria as neglect of personal hygiene. Finally, the Board acknowledges that the Veteran has been on continuous medication for his acquired psychiatric disorder for a number of years, resulting in mitigated symptomatology. However, the effects of his medication are contemplated by Diagnostic Code 9411 in the rating schedule. See 38 C.F.R. § 4.130; see also Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Accordingly, Jones does not apply, and the Board is not required to discuss the ameliorative effects of medication when evaluating the Veterans acquired psychiatric disorder. See McCarroll v. McDonald, 28 Vet. App. 267, 271-273 (2016). II. TDIU The Veteran asserts that his acquired psychiatric disorder prevents him from securing or following a substantially gainful occupation. See February 2017 Hearing Transcript. When evidence of unemployability is submitted during the appeal from an assigned disability rating, a claim for TDIU benefits will be considered part of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the appropriate rating under the pertinent diagnostic code of the rating schedule is less than 100 percent, the issue of unemployability must be determined without regard to the advancing age of the veteran. 38 C.F.R. §§ 3.341(a), 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). According to the applicable laws and regulations, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For the purposes of determining whether or not there is one 60 percent disability or one 40 percent disability, disabilities that affect a single body system, e.g. orthopedic, digestive, respiratory, will be considered as one disability. 38 C.F.R. Part 3, §§ 3.340, 4.16(a). However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet these percentage standards if he or she is unemployable by reason of his or her service-connected disability(ies). 38 C.F.R. § 4.16 (b). The Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). As this Board increases the Veteran's disability rating for an acquired psychiatric disorder to 70 percent, the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) for the entire period on appeal. On the Veteran's July 2016 TDIU application, he reports that he last worked full-time as a pipe fitter in October 2002. His educational background includes a GED. The Veteran competently and credibly testified that his anxiety caused him to leave his last job, and that this work profoundly impacted his anxiety. Additionally, he testified that he was unable to work in a structured work environment and had difficulty taking orders from superiors. This was corroborated by his wife. See February 2017 Hearing Transcript at 7 and 9. The Veteran added that when superiors would critique his work, he responded with anger. Id. at 30. The Veteran is also service connected for peripheral neuropathy in all four extremities. The Veteran testified that before he stopped working, he was had tingling and numbness in his fingertips and had difficulty standing for a long time. See February 2011 Medical Treatment Record; see also February 2017 Hearing Transcript at 36. In October 2016, the Veteran's physician opined that he is not capable of performing physical labor based on his bilateral lower extremity neuropathy because he is now using a walker and cannot stand for more than 5 minutes. He did opine that the Veteran may be fit for sedentary employment. See October 2016 Medical Treatment Record. The Veteran reported that all the jobs he has had involved physical labor, and that his last job involved welding heavy pipes together. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C § 5107; 38 C.F.R. § 3.102), that given the Veteran's anger towards his superiors, the physical nature of his profession which could no longer be performed safely due to his service-connected neuropathy, and the October 2016 physician's opinion that the Veteran is not able to perform physical labor, that he is unable to maintain employment. While the October 2016 physician opined that the Veteran could be able to maintain sedentary employment, the Board finds that the Veteran's anger outbursts in the workplace, in addition to his level of education and lifelong career in physical labor, render sedentary employment unobtainable. In sum, the Board finds that entitlement to a TDIU is warranted. ORDER For the entire appeal period, a rating of 70 percent for an acquired psychiatric disorder is granted. Entitlement to a total rating based on individual unemployability due to service connected disabilities from September 9, 2010 is granted. REMAND The Board finds that remand is necessary in order to obtain outstanding private medical records and to afford the Veteran with an adequate VA examination. As an initial matter, the Veteran mentioned that he had a cardiac catheterization in 2006 at King's Daughters Medical Center in Ashland, Kentucky. These records are not associated with the claims file, and should be obtained on remand. The Veteran should also be afforded a new VA examination that addresses all theories of entitlement. The Veteran has an irregular heartbeat and has experienced symptoms of angina, fatigue, dyspnea, and dizziness, but he has not been diagnosed with a specific disease. The Veteran is presumed to have been exposed to Agent Orange and to contaminated water at Camp Lejeune. An opinion addressing whether the Veteran's heart disability could be related to one of these theories of entitlement has not been obtained. Thus, remand is required. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records pertaining to the Veteran. 2. Contact the Veteran and request that he identify any and all outstanding VA and private treatment records related to the his heart disability. After obtaining the necessary authorization forms from the Veteran, obtain any pertinent records and associate them with claims file. Specifically, these records should include private treatment from King's Daughters Medical Center of Ashland, Kentucky. Any negative response should be in writing and associated with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of his heart disability. The Veteran may also submit lay statements regarding the impact of his heart disability. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. After any records requested above have been associated with the claims file, schedule a VA examination to determine the nature and etiology of the Veteran's claimed heart disability. All indicated tests must be accomplished. The entire claims file must be made available and reviewed by the examiner in conjunction with the examination. The examiner is requested to provide an opinion as to the following: a. Diagnose all current heart disabilities. b. Whether it is at least as likely as not that any diagnosed heart disability was incurred in or aggravated by military service. The examiner must comment on the Veteran's conceded exposure to Agent Orange and contaminated water at Camp Lejeune. c. Whether it is at least as likely as not that any diagnosed heart disability was caused by one or more of the Veteran's service-connected disabilities. d. Whether it is at least as likely as not that any diagnosed heart disability was aggravated by one or more of the Veteran's service-connected disabilities. If aggravation is found, the examiner is requested to discuss the baseline level of the heart disability prior to the onset of aggravation by the service-connected disability. 5. Then, readjudicate the claim. If any 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. §§ 5109B, 7112 (2012). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs