Citation Nr: 18141494 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-26 954 DATE: October 10, 2018 ORDER An evaluation of 70 percent, but no higher, for depressive disorder with general anxiety disorder is granted, subject to regulations governing the payment of monetary awards. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to an evaluation in excess of 20 percent for cervical spine degenerative disc disease with cervical lordosis, to include whether a separate compensable evaluation is warranted for arthritis of the cervical spine is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected depressive disorder with general anxiety disorder is manifested by occupational and social impairment with deficiencies in most areas, including symptoms of near-continuous panic or depression affecting the ability to function effectively, impaired impulse control such as unprovoked irritability, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and/or inability to establish and maintain effective relationships. 2. The Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected disability. CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for entitlement to a 70 percent, but no higher, rating for depressive disorder with general anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.21, 4.130, Diagnostic Code 9434. 2. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1996 to September 2002. These matters are on appeal from an April 2014 rating decision. The United States Court of Appeals for Veterans Claims (Court) has held that the issue of entitlement to a TDIU is an element of a claim for a higher initial or increased rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran has asserted that his service-connected cervical spine and psychiatric disabilities have rendered him unemployable. Although the Veteran filed a formal claim for a TDIU during the pendency of this appeal, which was denied by the RO in March 2016 and December 2017 rating decisions, a TDIU claim has been raised by the record as part of the Veteran’s increased rating claims for cervical spine degenerative disc disease and for depressive disorder with general anxiety disorder. As such, the Board has expanded the appeal to include the inferred issue of entitlement to a TDIU, as indicated on the title page. Depressive disorder with general anxiety disorder In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). For the period on appeal, the Veteran’s service-connected depressive disorder with general anxiety disorder is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434. Diagnostic Code 9434 utilizes the General Rating Formula for Mental Disorders, which provide that 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; and/or 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 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); and/or 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, “a [V]eteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. VA treatment records from September 2012 note the Veteran having an anxious mood, but oriented times 4 and there was no evidence of a thought disorder or cognitive problems. The Veteran did not pose a risk for self-harm. The Veteran indicated he was stressed and anxious due to work, and from having reduced his alcohol consumption. In November 2012, the Veteran’s mood was anxious but he indicated his hours at work were reduced. January 2013 records noted that the Veteran continued to work, and expressed some anxiety about his relationship with his girlfriend. In March 2013, the Veteran was noted to be disheveled, with uncombed hair. He was also noted to have rapid speech. The Veteran indicated that he was stressed about his job and home life. He would tinker in the garage and see a good friend who lived nearby to calm himself. In November 2013, it was noted that the Veteran’s grooming was poor, his clothing did not smell clean, and his hands were dirty. He reported stress at work, and attempts to find activities that were relaxing for him. During a March 2014 VA examination, the examiner summarized the Veteran’s level of occupational and social impairment as having mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or controlled by medication. The examiner noted that the Veteran was well groomed and casually dressed. He was pleasant and cooperative, with fairly good eye contact. His mood was described as being fairly good on current medication, although he reported some anxiety particularly when in crowded situations and when feeling rushed at work. The examiner indicated the Veteran’s affect was a little anxious, more so initially than later in the evaluation, and he had some intermittent fidgetiness. There were no unusual mannerisms or behaviors. He was not suicidal or homicidal. There were no overt psychotic symptoms. The examiner indicated that the Veteran’s symptoms were depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and disturbances of motivation and mood. May 2014 VA treatment records note that the Veteran started to have anxiety and panic attacks during work which required him to take medication. In July 2014, the Veteran was noted to have only fair grooming and appeared agitated, stressed, and tired. In September 2014, the Veteran indicated he was fired from his job after seven years, but then started another job cleaning equipment, which did not pay well. In February 2015, the Veteran appeared with poor grooming and a noticeable odor. During a February 2016 VA examination, the examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment/thinking, and/or mood. The Veteran’s current mental health issues included problems sleeping, feeling down, decreased interest in activities, low energy, varying appetite, and problems concentrating. He also suffered from anxiety, which included problems sleeping, concentrating, feeling irritable, muscle tension, and being easily fatigued. He also suffered from panic attacks once a day, usually in crowds. The symptoms that applied to the Veteran’s diagnosis included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, difficulty understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and intermittent inability to perform activities of daily living. VA treatment records from April 2016 note that the Veteran’s grooming was good, and that his mood was agitated and anxious. He remained working and took on extra work repairing lawn mowers. Anger and irritability were an issue, but he was able to withdraw and stepped outside to contain himself. He was also attending couples therapy with his partner. A mental status examination revealed good eye contact, regular speech, anxiousness and irritability, organized thought process, no delusions, homicidal or suicidal ideation, average memory, insight, judgment, and concentration, and motivated to work and improve relationship with wife. In May 2016, the Veteran was agitated and anxious and looked tired. He indicated that things were stressful at home. In July 2016, the Veteran indicated that he was under a lot of stress at work, and was being more irritable and argumentative. He did not sleep well, and was having problems at home with his wife. He also stated that he was afraid of losing his job because of his anger. He had panic attacks and irritability a few times a week. A mental status examination revealed good eye contact, regular speech, anxiousness and irritability, organized thought process, no delusions, homicidal or suicidal ideation, average memory, insight, judgment, and concentration, and disheveled hygiene. His attitude was cooperative and was asking for help. In September and October 2016, the Veteran indicated he was under a great deal of stress at work, and felt he was being shortchanged on pay. He did indicate a lift to his mood after a trip home to Oregon. In February 2017 VA treatment records, it was noted that the Veteran quit his job because it was too stressful. He had barely left his room at home and did not interact with others. The Veteran reported increased anger and irritability, resulting in problems with his family. He also reported difficulty sleeping, and indicated that the new building that his previous employer moved to made him feel very claustrophobic, as it was difficult to see his surroundings, causing him to feel more guarded and vigilant. He remained secluded and took out his bad mood on his family members. It was noted that the Veteran was very hard-working and needed to channel his efforts into positive change. In March 2017, the Veteran stated that he thought about events from the military on a daily basis and only got 3 to 4 hours of sleep. He indicated that he consumed alcohol to relax and liked to go target shooting. He repaired small engines to make extra money. In April 2017, the Veteran reported flashbacks triggered by depression and stress. He began hearing voices on some days. The Veteran’s hygiene was disheveled, and he was tearful and anxious. Memory and concentration were difficult due to depression. In May 2017, the Veteran indicated that he was having frequent memories of service and that helicopters flying over his house were distressing for him. He also reported sleep issues and problems with his wife at home. He stated that he was concerned about short-term memory, and it was noted that he was crying during an interview. Speech was stuttering and it was difficult for the Veteran to talk. In June 2017 the Veteran reported that things have calmed down and that he had spent some relaxing time camping. He did report feeling tired and drained by his wife and stepchildren. In July 2017, the Veteran complained of depression, low energy, tiredness, nightmares 5 to 6 times a week, anxiety, and feelings of hopelessness. He underwent a neuropsychological examination in August 2017, where he was found to have high levels of PTSD based on anxiety, moderate levels of depression, and perception of extreme pain. Cognitively his performance was notable for slower processing and greater difficulty with auditory rather than visual recall. The Veteran also indicated that he was keeping busy working on cars and going on camping trips with his wife. At his last job he worked himself to the point of exhaustion and could not do it anymore. He stated that he did not have much of a transition between military and civilian life and it was a hard adjustment for him. In September 2017, a VA examination was conducted. The examiner diagnosed major depressive disorder, generalized anxiety disorder, and posttraumatic stress disorder. The examiner also indicated that it was not possible to differentiate what symptoms are attributable to each diagnosis. The examiner summarized the Veteran’s level of occupational and social impairment as total occupational and social impairment. The Veteran indicated that he had not worked for the last seven months. He was having flashbacks of Bosnia and almost wrecked his car, and would get angry and upset at work. He reported that he and his wife did not socialize with others and that they had been fighting often. Symptoms that applied to the Veteran’s diagnosis were depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work, and neglect of personal appearance and hygiene. The Veteran also cited problems with motivation, flashbacks, intrusive thoughts, hypervigilance, and difficulties with concentration. Initially, the Board notes that the February 2016 and September 2017 VA examiners diagnosed the Veteran with posttraumatic stress disorder (PTSD), but he is not currently service-connected for this disability. However, the VA examiners found that differentiation was not possible between the nonservice-connected PTSD, and the service-connected depressive disorder and generalized anxiety disorder. Thus, giving the Veteran the benefit of the doubt, the Board will attribute any overlapping symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998) (holding that when a claimant has both service-connected and nonservice-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability). Based on a thorough review of the evidence of record, the Board finds that, for the period on appeal, a higher rating of 70 percent is warranted for the Veteran’s depressive disorder and general anxiety disorder. The Board finds the overall evidence supports a finding that the Veteran had occupational and social impairment, with deficiencies in most areas. In looking at the Veteran’s entire disability picture, the Veteran has consistently reported a depressed mood, anxiety, chronic sleep impairment, disturbances in motivation and mood, irritability, and feelings and outbursts of anger. In reviewing the evidence, it shows that the Veteran also reported high levels of stress and difficulty adapting to stress. He was also noted to be disheveled and often presented with bad grooming and odor. Additionally, the Veteran reported flashbacks, panic attacks, and VA examiners have found him to have near continuous panic and depression. The Veteran’s symptomatology had led to difficulty in establishing and maintaining effective work relationships, and he often had difficulty with social relationships. The Veteran’s wife had also indicated that he is difficult to live with at times. While the March 2014 VA examiner summarized the Veteran’s level of occupational and social impairment as having mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or controlled by medication; the examiner indicated that the Veteran had symptoms including near-continuous panic or depression affecting the ability to function independently, appropriately, which is a symptom included in a 70 percent evaluation. Additionally, May 2014 VA treatment records reflected the Veteran was having anxiety and panic attacks during work and July 2014 treatment records indicate the Veteran had only fair grooming and appeared agitated, stressed, and tired. Therefore, when considering the frequency, duration, and severity of the symptoms the Veteran was experiencing around that time, the Board finds that his symptoms more nearly approximated occupational and social impairment with deficiencies in most areas. However, the Board finds that a rating in excess of 70 percent is not warranted at any point during the appeal period. The evidence does not show that the frequency, duration, and severity of the Veteran’s service-connected psychiatric disability symptoms more nearly approximated total occupational and social impairment. The Veteran worked during the majority of the appeal period. Although he and his wife argued, they continued to have a relationship and remained married. He did not have symptoms of gross impairment in thought process or communication. His judgment and insight were consistently noted to be fair. Although the Veteran reported having auditory hallucinations in April 2017, there is no evidence of persistent delusions or hallucinations. The Veteran was consistently oriented to time and place. He also denied having suicidal or homicidal ideation, and his symptoms have not been such as to cause him to be a persistent danger to himself or others. While the Veteran complained of problems with short term memory, there is no evidence of severe memory loss as to the names of his own relatives, occupations, or own name. Although the September 2017 VA examiner indicated that the Veteran’s level of occupational and social impairment was best summarized as total occupational and social impairment, the frequency, duration, and severity of symptoms described at that examination, as discussed above, did not reflect total occupational and social impairment. Therefore, the Board finds the frequency, duration, and severity of the Veteran’s overall symptoms most closely reflect and are consistent with a 70 percent rating, and did not cause total occupational and social impairment. Accordingly, the Board concludes that the evidence of record most nearly approximates the criteria for a 70 percent, but no higher, rating and the claim is granted to that extent. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU Entitlement to TDIU requires impairment so severe that it is impossible for the average person to obtain and maintain a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by disabilities that are not service connected. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. The critical inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). If there is only one service-connected disability, it must be rated 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Pursuant to the decision herein, the Veteran meets the percentage requirement for consideration for TDIU, as he is service-connected for depressive disorder with general anxiety disorder rated as 70 percent. After a review of the evidence, the Board finds the evidence of record supports a finding that the Veteran is precluded from obtaining and maintaining a substantially gainful occupation consistent with his education and work experience as a result of his service-connected depressive disorder and generalized anxiety disorder. The Veteran has been out of work since January 2017 and is currently unemployed. The Veteran has presented competent, credible lay evidence that the Veteran is unable to work due to his anger, irritability, and difficulty with authority. His VA treatment records support his contentions. In a September 2017 VA Form 21-4192, Request for Employment Information, the Veteran’s last employer noted that the Veteran last worked for them on January 28, 2017, and the reason for termination was that he claimed he could not perform required tasks and job duties. In October 2017, the employer submitted another VA Form 21-4192, where it was noted that the Veteran last worked for them on January 20, 2017, and the reason for termination was that while he gave two weeks’ notice on January 18, 2017, he never came back to work after January 20, 2017. It is evident that the Veteran was not capable of performing adequately in an employment setting. In addition, as indicated above, the March 2014 VA examiner found the Veteran to have near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The February 2016 VA examiner found the Veteran to have panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, impairment of short and long-term memory, difficulty understanding complex commands, difficulty in establishing and maintaining effective work relationships, and difficulty in adapting to stressful circumstances. The September 2017 VA examiner found the Veteran to have panic attacks more than once a week, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances including work, and neglect of personal appearance and hygiene. The evidence also showed that concentration and attention were adversely affected by psychiatric symptoms. The record reflects that the Veteran suffers from significant mental health symptoms that significantly undercut his reliability as an employee when he was employed, and have worsened to the point that he prefers to be isolated and has problems interacting with others. Therefore, the Board finds that the Veteran’s symptoms create a functional impairment such that he lacks the reliability and efficient functioning required for substantial and meaningful employment. The Board also notes that the Veteran is now rated at 70 percent for his service-connected psychiatric disability, which is in and of itself, indicative of a significant disability. Therefore, the Board finds that in viewing the totality of the Veteran’s disability picture, the Veteran’s service-connected depressive disorder with general anxiety disorder prevent him from obtaining and retaining gainful employment. Resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Cervical spine degenerative disc disease with cervical lordosis In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner. The Court found the VA examination report in that case inadequate because the examiner merely indicated that an opinion could not be provided without resorting to speculation because the Veteran was not undergoing a flare-up at the time of the examination. The examiner failed to ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss regarding flare-ups in order to provide the requested opinion. In this case, the Veteran underwent a VA examination in March 2014 in conjunction with his claim for an increased rating for cervical spine degenerative disc disease with cervical lordosis. The March 2014 VA examiner noted the Veteran’s reports of flare-ups, and noted that overuse made it worse and that he had to lay down and rest at times. However, when asked if pain, weakness, fatigability or incoordination could significantly limit functional ability with flare-ups or when the joint is used repeatedly over a period of time; the examiner indicated that pain was noted on range of motion and “does occasionally limit functional ability during flare-ups,” but was unable to determine loss of range of motion during flare-ups. This opinion is inadequate as the examiner did not provide sufficient rationale in accordance with Sharp. As the examiner did not provide an adequate basis as to why an estimate as to the degree of functional loss or impairment during a flare up could not be made, a new VA examination is necessary. Also, the Veteran contends that a separate rating for arthritis of the cervical spine pursuant to 38 C.F.R. § 4.25(b) is warranted. On remand, the RO must consider the evidence of record and adjudicate the question of whether a separate rating is warranted for arthritis of the cervical spine at any point during the appeal period. Updated VA treatment records from August 2017 to the present should also be obtained. The matters are REMANDED for the following actions: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to the present. 2. Schedule the Veteran for an examination of the current severity of his cervical spine degenerative disc disease with cervical lordosis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the cervical spine degenerative disc disease with cervical lordosis alone and discuss the effect of the Veteran’s service-connected disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After completion of the development requested in items 1 and 2, the AOJ should readjudicate the Veteran’s claim to include consideration of whether a separate rating is warranted for arthritis of the cervical spine at any point during the appeal period. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Bonnie Yoon, Counsel