Citation Nr: 18141126 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-26 682 DATE: October 9, 2018 ORDER Entitlement to a rating in excess of 70 percent for a service-connected psychiatric disability, to include posttraumatic stress disorder (PTSD) with bipolar disorder, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted for the period from January 26, 2012 to November 11, 2014. FINDINGS OF FACT 1. For the appeal period, the Veteran’s service-connected psychiatric disability is manifested by symptoms such as irritable behavior and angry outbursts, depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, flattened affect, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike setting. 2. For the period from January 26, 2012 to November 11, 2014, the Veteran’s service-connected psychiatric disability rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the appeal period, the criteria for a rating in excess of 70 percent for a service-connected psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Codes 9432, 9411 (2017). 2. For the period from January 26, 2012 to November 11, 2014, the criteria for a TDIU were met. 38 U.S.C. §§1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1981 to February 2004. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. 1. Entitlement to a rating in excess of 70 percent for a service-connected psychiatric disability Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C. § 1155. A proper rating of the Veteran’s disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2 (2017); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Under 38 C.F.R. § 4.130, Diagnostic Code 9413, a 70 percent evaluation is warranted when there is 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptom must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the AOJ on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). The RO certified the Veteran’s appeal to the Board in February 2018, and therefore the claim is governed by DSM-5. The Board acknowledges that the private examiner used DSM-IV in her evaluation. Despite this, the VA examiner used DSM-V. Therefore, there is an adequate psychiatric examination of record and additional evaluation is not needed. For the period on appeal, the Veteran has reported symptoms such as irritable behavior and angry outbursts, depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, flattened affect, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or worklike setting. The Veteran reported being unable to work since 2006 or 2008 due PTSD and bipolar disorders. See Veteran’s Application for Increased Compensation Based on Unemployability dated in December 2014. The Board finds that majority of the Veteran’s symptoms are already contemplated by the currently assigned 70 percent evaluation. The Board does not find that a rating in excess of 70 percent is warranted. The Veteran does not have gross impairment in thought processes or communication, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, grossly inappropriate behavior, persistent danger of hurting self or others, or memory loss for names of close relatives, own occupation or own name. See Compensation and Pension Examination dated in November 2014. The examiner noted a history of drug abuse, but noted that the Veteran has remained relatively drug-free for several years. As to disorientation to time or place, the Veteran reported on episodes when he woke up in a parking lot in Florida with receipts in his pocket for purchases made in Georgia which he could not recall. Despite this, the majority of his symptoms are already contemplated by the 70 percent evaluation. The November 2014 examiner explained that the Veteran isolates himself and is highly anxious in any social or public situation. The examiner also opined that the Veteran was not capable of functioning in a competitive work environment. As will be described in more detail below, the Veteran is unemployability due to his psychiatric disability. Despite this, the examiner noted that he assists with caring for his two grandchildren regularly. He helps around the house with cleaning, laundry, shopping and meal preparation as well as childcare. He manages his own money and provides financial support to his two children. VA treatment records show that he takes care of his grandchildren when they come home from school and has a close relationship with them. See April 2016 VA treatment record; see also January 2016 VA treatment record. This demonstrates that he is not totally social impaired. For these reasons, the overall disability picture does not more nearly approximate the criteria for a schedular evaluation of 100 percent and a rating in excess of 70 percent is denied. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 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. 38 C.F.R. 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). For the purpose 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, or of 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. Id. The Veteran filed a claim for service connection for a psychiatric disability on January 26, 2012. At the same time, the Veteran filed a claim for a TDIU. A TDIU was granted for the Veteran beginning November 12, 2014. As the record shows that these issues are intertwined with one another and that the Veteran is unemployable due to his psychiatric disability, the Board finds that entitlement to a TDIU for the period prior to November 12, 2014 remains on appeal. (Continued on the next page)   Beginning February 17, 2006, the Veteran meets the schedular requirement under 38 C.F.R. § 4.16 for consideration of a TDIU. He is in receipt of an 80 percent evaluation for a psychiatric disability (70 percent disabling), cervical spine disability (10 percent disabling) and a scar (10 percent disabling). Having reviewed the record, the Board has determined that, from January 26, 2012, the date of the Veteran’s claim for a higher evaluation for his service-connected psychiatric disability and a TDIU, TDIU is warranted. The Veteran reported being unable to work since 2006 or 2008 due to his service-connected disabilities. See Veteran’s Application for Increased Compensation Based on Unemployability dated in December 2014; see also Veteran’s Application for Increased Compensation Based on Unemployability dated in January 2012. After his discharge in 2004, the Veteran attempted several jobs. The November 2011 private psychologist explained that the Veteran lost each job due to drug abuse problems. Despite this, the Veteran has remained relatively drug-free since 2008 and his current psychiatric symptoms, including significant cognitive difficulties, substantive difficulties with recall and sequencing of events, and difficulties with impulse control were likely to substantially negatively impact his employability. See letter for November 2011 evaluation. The examiner opined that the Veteran was unable to maintain a normal standard of living. The November 2014 examiner noted that the Veteran had been unemployed for the last several years. The November 2014 examiner also acknowledges a drug problem in the past, but opined that the Veteran was not presently capable of functioning in a competitive work environment. He opined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In weighing the lay and medical evidence of record, the Board finds that the evidence is in relative balance as to whether the Veteran has been rendered unable to obtain and maintain a substantially gainful occupation as the result of his service-connected disabilities. As such, entitlement to TDIU is warranted for the period from January 26, 2012 to November 11, 2014. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel