Citation Nr: 18141797 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-33 127 DATE: October 11, 2018 ORDER An initial rating of 70 percent for anxiety disorder NOS with PTSD symptoms (anxiety disorder) is granted from April 6, 2011. A total disability rating based on individual employability (TDIU) is granted from April 6, 2011. Special monthly compensation (SMC) at the housebound rate is granted from January 17, 2013. REMANDED Entitlement to service connection for a genitourinary and/or renal disorder, to include nephrolithiasis, varicoceles, and epididymitis, is remanded. Entitlement to an initial rating in excess of 70 percent for anxiety is remanded. FINDINGS OF FACT 1. From April 6, 2011, the Veteran’s anxiety disorder has been manifested by symptoms productive of at least occupational and social impairment with deficiencies in most areas. 2. From April 6, 2011, the Veteran’s anxiety disorder has precluded him from securing or following a substantially gainful occupation. 3. From January 17, 2013, the Veteran has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from his total rating for anxiety disorder. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent for anxiety are met from April 6, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413. 2. The criteria for a TDIU are met from April 6, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. 3. The criteria for SMC at the housebound rate are met from January 17, 2013. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2010 to April 2011, including service in Southwest Asia (Iraq), with additional National Guard service including a verified period of active duty for training (ACDUTRA) from January 2009 to May 2009. Among his decorations is the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and August 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran withdrew his September 2012 Board hearing request in an August 2013 written statement. 38 C.F.R. § 20.704. The Board has recharacterized the Veteran’s claim for service connection for kidney stones as reflected above. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board acknowledges that the Veteran agreed to withdraw his appeal seeking an increased initial rating for anxiety. See March 2013 Representative Letter. The Board finds that the Veteran did not fully understand the consequences of withdrawal, as subsequent to agreeing to withdrawal he continued to request an increased initial rating for his anxiety. See, e.g., August 2013 VA Form 9 (requesting “PTSD back pay”). Thus, the Veteran’s prior withdrawal of his appeal of this issue cannot now be characterized as “done with a full understanding of the consequences of such action on the part of the Veteran” (the standard for determining the validity of a withdrawal of an appeal), and accordingly, the Board has jurisdiction over that claim. See DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Warren v. McDonald, 28 Vet. App. 214 (2016). Moreover, as entitlement to a TDIU is part and parcel of the Veteran’s claim for an increased initial rating for his anxiety currently before the Board, the Board will determine the Veteran’s entitlement to a TDIU throughout the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). To the extent that additional pertinent evidence was received subsequent to the September 2012 Statement of the Case (SOC), the matters adjudicated herein are fully favorable and thus there is no prejudice to the Veteran in addressing them. In this regard, the Board has bifurcated the Veteran’s increased rating claim as reflected on the title page to allow for a favorable disposition at this time. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA’s discretion). The Board observes that the Veteran complained of headaches at the May 2011 VA General Medical examination, and the examiner opined that this condition was service-connected, as the Veteran’s service treatment records (STRs) show he was treated for a head injury following an IED explosion in Iraq. The Veteran’s entitlement to service connection for headaches has thus been raised by the record and is referred to the RO for appropriate action. 1. Increased Initial Rating for Anxiety The Veteran’s service connected anxiety disorder is currently rated 50 percent disabling prior to January 17, 2013, and 70 percent disabling thereafter. He asserts that he is entitled to a higher initial rating. As discussed below, the Board is granting the Veteran a rating of 70 percent for anxiety throughout the appeal, and is remanding the issue of entitlement to a rating in excess of 70 percent for additional development. Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4. The percentage ratings contained in the Schedule for Rating Disabilities 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; 38 C.F.R. §§ 3.321, 4.1. 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. The Veteran’s anxiety is currently rated under the General Rating Formula for Mental Disorders (Rating Formula). 38 C.F.R. § 4.130, DC 9413. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). A 50 percent rating is warranted for symptoms manifested by 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 assigned when the psychiatric condition produces 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. The Board finds that the Veteran’s appeal arises from his disagreement with his initial disability rating assigned following the award of service connection for anxiety. As discussed above, the evidence of record shows that the Veteran did not fully understand the consequences of his March 2013 withdrawal; thus, that withdrawal was not effective. As the Veteran timely perfected an appeal of the rating decision awarding service connection and an initial rating, the appeal period in the instant case is from April 6, 2011, the effective date of service connection and the day after his separation from service. See 38 C.F.R. § 3.400(b)(2). Initially, the Board notes that the Veteran is already in receipt of a rating of 70 percent for his anxiety from January 17, 2013. As the Board is remanding the issue of entitlement to a rating in excess of 70 percent, the Board will focus its discussion on the Veteran’s symptomatology before January 17, 2013. After a review of the medical and lay evidence, the Board finds that throughout the appeal, the Veteran’s anxiety has been manifested by symptoms that satisfy the criteria for a rating of 70 percent under the Rating Formula. The evidence shows that the Veteran’s anxiety produces at least occupational and social impairment with deficiencies in most areas, due to such symptoms as: anxiety; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships; impaired impulse control; occasional auditory hallucinations; and periods of passive suicidal ideation. See 38 C.F.R. § 4.130, DC 9413. The evidence of record reflects that the Veteran spent most of his time at home with his dogs watching television; did not form or maintain any effective work relationships; did not form new effective social relationships; and did not maintain effective social relationships, as he was in frequent conflict with and/or infrequently communicated with those individuals with whom he did have social relationships, namely his wife and some members of his family. Specifically, the Veteran’s only employment between April 2011 and January 2013 was as a part-time National Guardsman, and in January 2013 his unit prepared to medically discharge him effective February 2013 due to, among other things, his anxiety disorder. See February 2013 National Guard Orders; February 2013 NGB Form 22. The Veteran had frequent, serious conflict with his wife, including her living apart from him in their house and preparing for divorce. See December 2011, January 2012, and July 2012 Treatment Notes; see also January 2013 VA Psychiatric Examination Report (described relationship with wife as “rocky at best” with physical conflict). He rarely left the home and did not form or maintain relationships outside his family. See June 2011 Treatment Note (remained at home, only went out once with friends since March 2011 return from Iraq); May 2011 VA Psychiatric Examination Report (reported only feels close to two or three people); January 2012 Treatment Note (limited contact with family, few friends); January 2013 VA Psychiatric Examination Report (reported “a few friends” in National Guard, but no close friends outside family and in-laws). On those occasions when he engaged in social activity, he was unable to form or maintain effective relationships. See January 2012 Treatment Note (drank eight beers to calm himself at hockey game); January 2013 VA Psychiatric Examination Report (reported two panic attacks in last month, one from anticipated conflict before visiting sister, other from anticipated conflict before visiting grandparents). He rarely spoke with his family and frequently was engaged in conflict when he did. See June 2011 Treatment Note (spoke to mother and father once every other month); see also January 2012 Treatment Note (limited contact with family). Such findings are consistent with an inability to establish or maintain effective relationships prior to January 2013. The Veteran also exhibited difficulty in adapting to stressful circumstances (including work or a work-like setting) and impaired impulse control during this period. He reported that some days he stayed in bed the whole day if he felt he would be too irritable with others, and that after getting disproportionately angry he would withdraw and it would take two hours to calm himself. See December 2011 Treatment Note. The Veteran reported rarely leaving the home due to stress he experienced in large crowds, and that he would sleep during the day so that when he did leave the home to go grocery shopping he could do so at night. See January 2012 Treatment Note. The Veteran reported that when he experienced painful feelings, he would sometimes drink or take his prescription pain medication to numb his feelings. See December 2011 and January 2012 Treatment Notes. He stated that since his return from Iraq, his “fuse went from a mile long to six inches,” that when he saw Muslim-looking people in public he felt on the verge of yelling Arabic obscenities at them, and that he drove out of his way to avoid seeing Muslim-looking people at stores. June 2011 Treatment Note. Furthermore, the Veteran’s last occupation before deployment (and his stated preferred employment) was as a tow truck driver. See May 2011 VA General Medical Examination Report; April 2013 VA Form 21-8940. Thus, driving is a work-like activity for the Veteran, and he reported that he frequently experienced hypervigilance and intrusive memories while driving, that seeing any pile of garbage or suspicious item on the side of the road triggered memories of an improvised explosive device (IED) attack he experienced in Iraq and caused him to get very anxious and panicked. See May 2011 VA Psychiatric Examination Report. He reported slowing down when he saw suspicious items by the road, going back to investigate these objects to ensure that there was no danger or threat, and that occasionally he had to pull over and let his wife drive. Id. He also reported having flashbacks to the IED explosion while driving, causing him to slam on his brakes when he thought he saw an explosive, as well as experiencing road rage. See June 2011 Treatment Note. Moreover, the January 2013 VA psychiatric examiner indicated that the Veteran exhibited difficulty in adapting to stressful circumstances, including work or a worklike setting, based upon reported symptomatology at that examination consistent with the symptoms described above, as well as a review of mental health treatment notes from prior to January 2013. See January 2013 VA Psychiatric Examination Report. Moreover, the Veteran reported periodic passive suicidal ideation at a January 2012 mental health session. See January 2012 Treatment Note. The Board notes that the United States Court of Appeals for Veterans Claims has held that “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Accordingly, the Board finds that in conjunction with his other symptomatology, the Veteran’s reported passive suicidal ideation weighs heavily in support of the determination that his anxiety disorder was manifested by at least occupational and social impairment with deficiencies in most areas throughout the appeal. Additionally, the Board observes that subsequent to January 17, 2013, the Veteran’s anxiety symptomatology remained consistent with a rating of at least 70 percent. See January and July 2013 VA Psychiatric Examination Reports (noting passive suicidal ideation, impaired impulse control and difficulty in adapting to stressful circumstances, including work or a work-like setting); April and August 2016 VA Examination Reports (reporting occupational and social impairment with deficiencies in most areas). The Board acknowledges that the VA examiners of record have consistently opined that the Veteran significantly over-endorsed his symptoms on psychiatric testing completed throughout the appeal. See, e.g., May 2011 and January 2013 VA Psychiatric Examination Reports. However, his reported symptoms at his VA examinations are consistent with his mental health treatment sessions, as well as his wife’s reports during often-contentious couples therapy sessions. See July 2012 Treatment Note (wife confirming Veteran’s avoidant behavior). Moreover, his June 2011 initial mental health intake evaluator noted that the Veteran’s exaggerated answers had no indication of deceit and were consistent with a “cry for help.” See June 2011 Treatment Note. Furthermore, the Board observes that the majority of subsequent VA psychiatric examiners indicated that the Veteran’s symptoms were productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. See April and August 2016 VA Psychiatric Examination Reports. The Board finds that the evidence of record supports the conclusion that the differing responses of the VA psychiatric examiners were a product of different examiners at different times describing the same disability in the different language, and that the Veteran’s anxiety has been productive of at least occupational and social impairment with deficiencies in most areas throughout the appeal. See 38 C.F.R. § 4.2. Thus, the Board finds that the preponderance of the evidence shows that Veteran’s symptoms of anxiety have resulted in at least deficiencies in most areas and are characteristic of at least a 70 percent disability rating for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9413. 2. TDIU The Veteran asserts that he is unable to work due to his anxiety disorder. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). When considering a veteran’s entitlement to a TDIU, the relevant question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU 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 veteran 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 at 70 percent or higher. 38 C.F.R. § 4.16. The Veteran is service-connected for anxiety, obstructive sleep apnea, and a bilateral knee disorder. The instant decision awards the Veteran a 70 percent rating for anxiety from the date of service connection, April 6, 2011. Thus, since April 6, 2011, he has met the schedular requirements for a TDIU. 38 C.F.R. § 4.16. The Veteran has a General Educational Diploma (GED) and some college credits. See May 2011 General Medical VA Examination Report. He last worked full time in 2008, and his two longest occupations have been as a sheet metal fabricator for two and a half years, and as a tow truck driver for one and a half years. See id; April 2013 VA Form 21-8940. The July 2013 VA psychiatric examiner opined that the Veteran’s symptoms did not “appear” to be of such severity as to preclude him from working altogether, which is speculative and not probative. Notably, the examiner indicated that the Veteran reported poor coping skills, which would affect his ability to tolerate stress and interact appropriately with others in a work setting, and that the Veteran indicated poor concentration and short-term memory, which would limit his productivity and efficiency. The examiner concluded that the Veteran “appeared” capable of working in a low-stress capacity with limited interpersonal interaction. The Board finds that the Veteran has not had substantially gainful employment since his return from Iraq. He was unable to obtain work in the private sector in July 2011 despite multiple applications, and his only employment since his return from Iraq was occasional part-time work at the VFW, usually in the evenings, until February 2015. See April 2013 VA Form 21-8940 (applied for jobs in July 2011); National Guard Personnel Records (last Guard drill February 3, 2013, discharge effective February 28, 2013); May 2014 VA Gulf War Examination Report (mowed the lawn at VFW); February 2015 Treatment Note (not employed, but part-time work at VFW); August 2016 VA Psychiatric Examination (no work since last examination in April 2016). The Board finds the Veteran’s part-time work at the VFW, a veteran-friendly organization, constituted marginal employment in a protected environment and is therefore not substantially gainful employment. See 38 C.F.R. § 4.16(a). Additionally, the Board finds that the Veteran’s service-connected anxiety disorder has prevented him from securing or following substantially gainful employment since April 6, 2011, his first day of schedular eligibility for a TDIU. Notably, the only original opinion from a VA psychiatric examiner regarding the Veteran’s employability came from the July 2013 examiner, who opined that the Veteran’s anxiety significantly impaired his ability to work, but that it “appeared” he could still do work in a low-stress environment without significant interpersonal interaction. See July 2013 VA Psychiatric Examination Report. The Board finds that neither of the Veteran’s longest previous occupations (as a tow truck driver or metal fabricator) would be appropriate, as he can no longer drive professionally or work in an environment with unexpected noises, due to his psychiatric symptomatology related to the IED explosion he experienced, and the VA examiners’ consistent findings that the Veteran has difficulty adapting to stressful circumstances in a work or work-like environment. See May 2011 VA Psychiatric Examination report. Moreover, the Board observes Veteran has been unable to maintain his protected employment during the appeal due to his psychiatric symptoms, which involved a working environment and hiring requirements more forgiving than those in the private sector. Additionally, the Board notes that the Veteran’s ability to adapt to stressful circumstances has deteriorated further since the July 2013 VA examiner’s opinion, as the Veteran has since been hospitalized at least three times as a result of his anxiety. See February 2015 Treatment Notes; January 2017 and May 2017 VAMC Reports of Hospitalization. The Board emphasizes that the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; rather, that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Here, after a careful review of the record, and affording the Veteran the benefit of the doubt, and given the Veteran’s education and prior work history, the Board finds that his suicidal ideation and suicide attempts, difficulty responding to stressful situations (including at work or in a work-like environment), inability to form or maintain effective relationships, unprovoked irritability, and difficulty functioning around other people or leaving the house, along with his symptoms inhibiting his ability to drive or to work in an environment with unexpected loud noises, prevent the Veteran from securing or following a substantially gainful occupation. Accordingly, entitlement to a TDIU is granted throughout the appeal period. 3. SMC VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008) (finding that SMC “benefits are to be accorded when a Veteran becomes eligible without need for a separate claim” and remanding, pursuant to VA’s duty to maximize benefits, for VA to determine whether the Veteran’s posttraumatic stress disorder, rated 70 percent disabling, would entitle him to a TDIU and, therefore, to SMC). SMC is payable where a veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. A TDIU may satisfy the “rated as total” element of 38 U.S.C. § 1114(s), if the TDIU is awarded for a single disability. Buie, supra. In this case, the Veteran is entitled to a TDIU for his anxiety disorder alone, and he has additional service-connected disabilities ratable at a combined 60 percent from January 17, 2013. Accordingly, he is entitled to SMC at the housebound rate from that date. REASONS FOR REMAND 4. Entitlement to service connection for a genitourinary and/or renal disorder, to include nephrolithiasis, varicoceles, and epididymitis, is remanded. 5. Entitlement to an initial rating in excess of 70 percent for anxiety is remanded. The Veteran was diagnosed with kidney stones in June 2010, during his active service. See STRs. After undergoing a vasectomy in January 2015, he developed genitourinary complications and recurrent testicular pain, and was ultimately diagnosed with bilateral varicoceles and epididymitis. See January 2015 Urology Treatment Note (complications following vasectomy); May 2016 Addendum Note (bilateral varicoceles on September 2015 ultrasound) June 2016 ER Notes (diagnosis of epididymitis). The Veteran has not yet been provided a VA genitourinary examination. See May 2011 VA Examination Report (indicating GU examination not performed). Given the Veteran’s medical history and diagnoses, the Board finds that a VA examination and medical nexus opinion are warranted and should be obtained on remand. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Updated VA and private treatment records should also be secured, to include complete records of the Veteran’s 2017 psychiatric hospitalizations. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated since September 2016, to include the complete records concerning the Veteran’s January and July 2017 psychiatric hospitalizations. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination to determine the nature and etiology of any current genitourinary and/or renal disorder(s) found to be present, to include nephrolithiasis, varicoceles, and epididymitis. The claims file should be made available to and should be reviewed by the examiner. In doing so, the clinician should note that the term “current” means occurring at any time during the pendency of the Veteran’s claim, i.e., from July 2014 onward. The disorder need not be present at the time of the evaluation; rather it is sufficient if it previously existed during the pendency of the claim and then resolved. For each disorder so diagnosed, state whether it is at least as likely as not (a 50 percent or greater probability) that such disorder had its onset during active service or is otherwise related to the Veteran’s service, to include documented kidney stones therein; In addressing this question, the examiner should discuss the Veteran’s history of (1) nephrolithiasis, including his June 2010 CT scan showing nephroliths and an ureterolith; and (2) testicular pain and genitourinary complications following his January 2015 vasectomy, including his September 2015 ultrasound showing bilateral varicoceles and his June 2016 diagnosis of epididymitis. A complete rationale must be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel