Citation Nr: 1800149 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-13 194 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial increased rating in excess of 30 percent for an acquired psychiatric disorder prior to July 10, 2013 and in excess of 70 percent thereafter. 2. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to July 10, 2013. REPRESENTATION Veteran represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1967 to April 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2011 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. These matters were previously before the Board, and, in October 2015, the Board remanded this matter for further development. Further development in substantial compliance with the Board's remand instructions has been completed. FINDINGS OF FACT 1. The Veteran's PTSD caused occupational and social impairment with deficiencies in most areas throughout the period on appeal, but it did not cause total occupational and total social impairment for any distinct period of time during the course of the appeal. 2. The Veteran was unable to secure and maintain substantially gainful employment throughout the period on appeal due to his service-connected disabilities, and the Veteran met the schedular requirements for TDIU. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent have been met throughout the period on appeal, but the criteria for a total disability rating have not been met at any time during the period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for TDIU have been met throughout the period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was provided, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and, therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, VA treatment records, Social Security Administration (SSA) records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify at a hearing before the Board, but he declined. The Veteran was also provided with several VA examinations and neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). The Board notes that these matter were previously remanded in order to associate additional treatment records with the claims file and to provide the Veteran with an informal conference. Further development in substantial compliance with the Board's remand instructions has been completed. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). There is no prejudice to the Veteran in adjudicating this appeal, because VA's duties to notify and assist have been met. Acquired Psychiatric Disorder At issue is whether the Veteran is entitled to a disability rating in excess of 30 percent for an acquired psychiatric disorder prior to July 10, 2013 and in excess of 70 percent thereafter. The weight of the evidence indicates that the Veteran is entitled to a disability rating of 70 percent throughout the period on appeal, but the Veteran is not entitled to a total disability rating at any time during the period on appeal. The Veteran first filed a claim for service connection for an acquired psychiatric disorder in March 2008, and, in May 2011, the RO granted service connection and assigned a disability rating of 30 percent. The Veteran appealed his initial disability rating. During the pendency of the appeal, the Veteran's disability rating was increased to 70 percent effective July 10, 2013. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for an acquired psychiatric disorder are assigned pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, when a mental disorder causes occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A disability rating of 30 percent is assigned when a mental disorder causes occupational and social impairment with occasional decreases 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). Id. A disability rating of 50 percent is assigned when a mental disorder causes 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-term 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. Id. A disability rating of 70 percent is assigned when a mental disorder causes 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A total (100 percent) disability rating is assigned when a mental disorder causes 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. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating, because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio. SSA records indicate that the SSA found that the Veteran's acquired psychiatric disorder made him too disabled to obtain employment, and that the Veteran's disability began in November 2007. The SSA determination was based on a vocational analysis which indicated that the Veteran was unable to return to work, because his ability to interact appropriately with the general public, accept instructions, or respond to criticism from superiors was markedly limited. Nevertheless, the Veteran's SSA records also indicate that the Veteran was employed in a variety of positions, including in sales, customer service, and in janitorial services, from November 1999 to February 2008 as well as for a brief period of time as a grocer from October 2010 to April 2011. Treatment records indicate that the Veteran manifested continuous psychological symptoms throughout the period on appeal. The Veteran submitted a written statement in April 2008 from a member of his family describing his psychiatric symptoms as including: sleeping with a weapon nearby; booby-trapping his house against intruders; being jittery and jumpy in crowds; and avoiding of fireworks and other loud noises. VA treatment records from April 2008 to September 2013 indicate that the Veteran was assigned global assessment of functioning (GAF) scores ranging from 45 to 62. GAF is a scale indicating the psychological, social, and occupational functioning on a hypothetical continuum of mental health and illness. Richard v. Brown, 9 Vet. App. 266 (1996). GAF scores from 41 to 50 are assigned for serious symptoms, and GAF scores from 51 to 60 are associated with moderate symptoms. GAF scores from 61 to 70 are associated with mild symptoms. American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The Veteran submitted a written statement in January 2009 reporting his psychiatric symptoms including the claim that he was so nervous due to his acquired psychiatric disorder that he would booby trap his house at night. The Veteran underwent an initial VA examination in May 2011. The Veteran indicated that he had been married twice, but that his current marriage had lasted for decades. The Veteran also indicated that he had a few friends, but that he had rarely met with them. The examiner observed the following psychological symptoms: anxiousness; depression; guarded affect; clear and goal oriented thoughts; no evidence of delusions or hallucinations; abstractions, memory, and judgment grossly intact but with difficulty in concentration and focus due to intrusive memories, anxiety, and depression; appropriate grooming and hygiene; appropriate speech and communication; ongoing hypervigilance; recent passive suicidal ideation; and no panic, paranoia, or obsessional rituals. The examiner assigned the Veteran a GAF score of 60. The Veteran submitted an affidavit signed in May 2012 stating that he worked as a salesman from 1997 to 2007 at which time he could no longer maintain employment due to his psychological symptoms. The Veteran indicated that he attempted to work in a grocery store for a brief period of time. The Veteran noted a number of psychological symptoms including: anxiety, depression, impaired memory, impaired concentration, impaired impulse control, intrusive thoughts, nightmares, flashbacks, anxiety, and self-isolating behavior. The Veteran underwent a SSA mental residual functional capacity assessment in November 2012. The following skills were evaluated as having some evidence of limitation but not significantly limited: ability to remember locations and work-like procedures; ability to understand and remember short limited instructions; ability to understand detailed behavior; ability to carry out short simple instructions; ability to carry out detailed instructions; ability to ask simple questions; ability to maintain social appropriate behavior and cleanliness; and ability to travel in unfamiliar places. The following skills were evaluated as moderately limited: ability to maintain attention and concentration for extended periods; ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; ability to sustain an ordinary routine without supervision; ability to work in coordination with or proximity to other without being distracted by them; ability to respond to changes in work setting; ability to be aware of normal hazards; and the ability to set realistic goals or make plans independently of others. The following skills were evaluated as markedly limited: ability to interact appropriately with the general public; ability to accept instructions and respond appropriately to supervisors; and ability to get along with coworkers. A November 2012 SSA case analysis indicates that the Veteran's psychiatric symptoms would interfere with his ability for sustained concentration and persistent or for task completion. The Veteran's psychiatric symptoms indicated that he experienced social withdrawal and episodes of irritability, crying spells, and argumentativeness that would significantly interfere with his ability for appropriate interaction with coworkers. The case analysis concludes that the Veteran's transient cognitive dysfunction and depressive reaction interfere with his adaptability in a routine work setting. The Veteran underwent another VA examination in July 2013 at which he indicated that reported that he did not feel that he would be able to return to work due to his psychological problems. The Veteran reported that his first wife left him shortly after returning from his period of service, but that he had been in a relationship with his current wife for 43 years. The Veteran indicated that people visit him one or two times a month, and that his sister occasionally comes to play cards. The examiner noted the following symptoms: recurrent and distressing recollections of events; efforts to avoid thoughts, feelings, or conversations associated with trauma; markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others; restricted range of affect; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; depressed mood; anxiety; suspiciousness; near continuous panic or depression; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty adapting to stressful circumstances. The examiner opined that the Veteran manifested occupational and social impairment with deficiencies in most areas, and that the Veteran was unemployable due to his psychological symptoms. The Veteran underwent another VA examination in April 2016 at which he reported last working in 2008, as he had been unable to maintain constant employment ever since due to his mood swings. The Veteran reported that he had maintained a relationship with his wife of 46 years. The examiner noted the following psychological symptoms: recurrent, involuntary, and intrusive distressing memories; recurrent distressing dreams; dissociative reactions; intense or prolonged psychological distress; marked physiological reactions; avoidance of distressing memories or external reminders of trauma; depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression; chronic sleep impairment; memory problems; flattened affect; circumstantial, circumlocutory, or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; suicidal ideation; obsessional rituals; impaired impulse control; spatial disorientation; persistent danger of hurting self or others; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living. The examiner opined that the Veteran manifested total occupational impairment. The Veteran and his wife submitted affidavits signed in February 2017 indicating that the Veteran was unable to maintain employment due to his intense psychological symptoms. The Veteran submitted an opinion from a private vocational expert in March 2017. The vocational expert opined that the Veteran had been unable to secure and maintain substantial gainful employment due to his acquired psychiatric disorder alone since 2006. Namely, the vocational expert indicated that the Veteran's acquired psychiatric disorder caused the following problems which impair employment: inability to sustaining focus and attention for at least two hours; inability to attend work tasks and remain free from distraction or interruption; inability to refrain from taking unscheduled breaks; inability to attend work on a regular schedule; inability to engage in outbursts or arguments on the job; and an inability to produce a certain minimal amount of work while on the job. The weight of the evidence indicates that the Veteran is not entitled to a total disability rating at any point in time during the period on appeal. The Board notes that in April 2016 a VA examiner opined that the Veteran manifested total occupational and social impairment. Nevertheless, the determination of total occupational and social impairment is a determination that the Board must make based on the impact of articulated psychological symptoms. Although, the Veteran has manifested intense psychological symptoms throughout the period on appeal that have undoubtedly strained his relationships, the simple fact of the matter is that the Veteran has successfully maintained a decades long relationship with his wife, a relationship with his sister, and some casual social relationships with a few friends throughout the period on appeal. Therefore, the Veteran is not totally socially impaired, and, therefore, he does not meet the criteria for a total schedular disability rating. The weight of the evidence indicates that the Veteran's psychiatric symptomatology was more severe than represented by the assigned 30 percent rating throughout the period on appeal. A 30 percent rating suggests that psychiatric symptomatology causes occasional decreases in work efficiency or intermittent periods of an inability to perform occupational tasks. Nevertheless, the SSA records throughout the period on appeal clearly indicate that the Veteran's psychological symptoms continuously impaired his ability to secure and maintain employment rather than occasionally decreasing his work efficiency or preventing from working on an intermittent basis. As such, the Veteran's is entitled to a disability rating of at least 50 percent throughout the period on appeal. The only question then remaining is whether the Veteran's psychological symptoms prior to July 10, 2013 more closely approximate the criteria for a disability rating of 50 percent or the criteria for a disability rating of 70 percent. A VA examination during this period did not describe the severity of the Veteran's occupational and social impairment. Nevertheless, the Veteran's GAF scores during this period on appeal indicate that the Veteran's psychological symptoms range from mild to serious. GAF scores are not dispositive, but they due remain an important piece of evidence for the Board to consider. Additionally, a November 2012 SSA case analysis indicates that the Veteran's psychiatric symptoms including episodes of irritability, crying spells, and argumentativeness that would significantly interfere with his ability for appropriate interaction with coworkers. Upon reviewing this evidence, the Board finds that it is at least as likely as not that the Veteran's psychological symptoms more nearly approximates the criteria required for a disability rating of 70 percent. As such, a disability rating of 70 percent is granted throughout the period on appeal. Extraschedular The Veteran specifically raised the issue of entitlement to an extraschedular disability rating including in a March 2017 appeal brief to the Board. In exceptional cases, an extraschedular rating may be provided. See 38 C.F.R. § 3.321; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment for the Veteran's acquired psychiatric disorder is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular criteria applicable to acquired psychiatric disorders require the Board to take into consideration the Veteran's occupational and social impairment due to his acquired psychiatric disorder. These terms are broad and, by their very nature require, the Board to consider the Veteran's health holistically and globally. Furthermore - although the Board is provided with an illustrative list of symptoms associated with each disability rating - the Board must take into consideration the existence and severity of all mental symptoms when determining the Veteran's level of occupational and social impairment. See Mauerhan; see also Vazquez-Claudio. That is, the Board necessarily considers all of psychiatric related symptoms within the scheduled rating criteria. Accordingly, the Board finds that the Veteran's disability picture is adequately anticipated by the schedular rating criteria, and, therefore, the Veteran is not entitled to consideration of extraschedular rating. TDIU The Veteran contends that he is entitled to the assignment of TDIU prior to July 10, 2013. The Veteran meets the schedular criteria for a TDIU throughout the period on appeal, because he has been assigned a single disability rating that is at least 60 percent disabling throughout the period on appeal. Additionally, due to the occupational impairment described above, as well as the combined occupational impairment of the Veteran's other previously service-connected disabilities, the weight of the evidence indicates that he has been unable to secure and maintain substantially gainful employment throughout the period on appeal. As such, TDIU throughout the period on appeal is granted. ORDER A disability rating of 70 percent for an acquired psychiatric disorder from March 10, 2008 is granted; subject to the laws and regulations governing the payment of VA monetary benefits. A total disability rating for an acquired psychiatric disorder from March 10, 2008 is denied. TDIU from March 10, 2008 is granted; subject to the laws and regulations governing the payment of VA monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs