Citation Nr: 18143719 Decision Date: 10/22/18 Archive Date: 10/19/18 DOCKET NO. 09-36 093 DATE: October 22, 2018 ORDER The Board having determined that a 70 percent disability rating is warranted for the Veteran’s acquired psychiatric disorder for the period prior to November 19, 2015, the benefit sought on appeal is granted to this extent, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a rating higher than 70 percent for an acquired psychiatric disorder for the period beginning November 19, 2015, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT Throughout the period of the claim, the Veteran’s acquired psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; it has not been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period prior to November 19, 2015, the criteria for a 70 percent rating, but not higher, for an acquired psychiatric disorder, were met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Codes (DC) 9411. 2. For the period beginning November 19, 2015, the criteria for a rating higher than 70 percent, for an acquired psychiatric disorder, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSIONS Introduction The Veteran served on active duty from February 1963 to November 1965, from January 1966 to December 1968, and from December 1968 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In February 2011, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In March 2011, the Board remanded this case for additional development. The case has now been returned to the Board for further appellate consideration. The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board refers to the Veteran’s mental health condition broadly, as an acquired psychiatric disorder, herein. In the February 2008 rating decision on appeal, the RO granted service connection for an acquired psychiatric disorder and assigned a 30 percent initial rating, effective October 22, 2007, the date the Veteran’s claim for service connection for an acquired psychiatric disorder was filed. During the pendency of the appeal, in an August 2009 rating decision, the initial rating was increased to 50 percent, effective October 22, 2007. In a July 2018 decision, the rating was increased to 70 percent, effective November 19, 2015. The Veteran has not indicated he is satisfied with the staged initial rating currently in place. As such, the issue of entitlement to an increased initial rating for an acquired psychiatric disorder remains on appeal. General Legal Criteria Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 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. 38 C.F.R. § 4.7. In increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Board has reviewed all the evidence of record, with an emphasis on the evidence relevant to the Veteran’s claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran’s claims. The Veteran’s service-connected acquired psychiatric disorder is rated under the General Rating Formula for Mental Disorders. Under this formula, in pertinent part, 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 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 ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and 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 process 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; and memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DCs 9411, 9434. The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code. Instead, 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 (4th ed. 1994) (DSM-IV). Mauerhan v. Principi, 16 Vet. App. 436 (2002). By way of background, the Veteran filed a claim for service connection for an acquired psychiatric disorder in October 2007. In a December 2007 statement, he asserted he had daily thoughts of Vietnam, and tried not to think about it, but that it was hard because it seemed like it was just yesterday. He stated he never got a good night’s sleep and had dreams at least once per week of a threatening nature and woke sweating. He further stated he did not like to be around crowds or too many people, as it reminded him of war. He further asserted he was angered easily and could not have his back facing the door in restaurants. Finally, he stated he did not trust most people, and had poor concentration and memory. A review of VA outpatient social work and mental health records shows that in October 2007, the Veteran reported startle effects with loud noises, erratic sleep, intrusive memories, occasional nightmares, and hypervigilance. In November 2007 he reported thoughts of death and a sense of a foreshortened future. In December 2007 he had weekly threatening dreams, sleep disturbance, irritability and anger, poor concentration, forgetfulness, and hypervigilance. In February 2008 he reported sleep disturbance and intrusive thoughts of war. April 2008 records show the Veteran reported occasional nightmares which caused him to awaken in a sweat, as well as occasional intrusive memories of combat and being less involved in activities. In October 2008 he reported poor sleep, weekly dreams, daily intrusive thoughts, and occasional flashbacks. In November 2008 he reported anger, irritability, sleep disturbance due to dreams of Vietnam, occasional flashbacks, forgetfulness, lack of socialization and trust of people, having to sit facing the door at restaurants, and dislike of crowds. In December 2008 he reported isolation and sleep disturbance. In February 2009 he reported poor sleep. In September 2009, the Veteran reported less socialization and loss of interest in sports and other activities. A November 2009 social work record noted poor sleep, fatigue, anger, and irritability. In January 2010, the Veteran reported isolation and avoidance of confrontation. In September 2011 he reported increasing intrusive thoughts. At his February 2011 hearing, the Veteran testified he continued to wake from dreams of Vietnam sweating at least once per week. He stated flashbacks were triggered by loud noises, and that he avoided crowds and sitting with his back to the door in public places. He reported he worked driving a truck twice per week. He also stated he watched his niece’s baby three or four days per week, and helped look after his niece’s father, who had health problems. He also referenced occasionally socializing with two other men his own age. The Veteran was afforded a VA examination in November 2015. The examiner stated the Veteran continued to report the following symptoms associated with his service-connected acquired psychiatric disorder: recurrent and intrusive distressing memories of traumatic events, especially instigated by sensory and environmental triggers (e.g., sounds that mimic explosions/gunfire; TV news associated with violence and/or military events; etc.); distressing dreams associated with the traumatic events, approximately a few times monthly; episodic dissociative reactions/flashbacks associated with military experiences; psycho-physiological reactions to intrusive memories and distressing dreams, including night sweats, tension, anxiety; avoidance patterns associated with most stimuli (especially social and environmental) that instigate unwanted memories, thoughts, feelings of traumatic incidents; persistent negative emotional states; decrements in personal interests and/or activities; irritability; continued hypervigilance, especially in external venues; startle reactions to both sensory and interpersonal stimuli (e.g., reactions to sounds mimicking gunfire/explosions; unexpected approaches from individuals; etc.); concentration and other cognitive compromise (especially in memory) as psychiatric symptoms are most pronounced; and significant sleep disturbance with issues in both acquisition of, though especially in sustaining restorative sleep, with such decrements resulting in mental and physical fatigue. The examiner then noted the Veteran reported he continued to live with his “paramour” of the past 32 years. The Veteran stated he had four sisters and one brother, but was only in contact with one sister. He stated he had few friends and spent most of his time alone when not participating in family activities. He reported, however, that he participated in activities with his paramour’s family, who considered him to be and treated him as part of their family. In another section of his report, the examiner indicated the Veteran’s symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. Upon a review of the foregoing, the Board has determined that prior to November 19, 2015, the Veteran’s service-connected acquired psychiatric disorder was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In this regard, the Board notes that a review of the VA outpatient treatment notes summarized above shows that during this period, the Veteran’s symptoms included sleep disturbance, anger, irritability, hypervigilance, flashbacks, self-isolation, poor concentration, and forgetfulness. These symptoms clearly would cause significant social and occupational impairment. In addition, the Board notes that the RO granted an increased 70 percent rating for the Veteran’s acquired psychiatric disorder on the basis of the November 2015 VA examination findings summarized above. The Board observes there was a gap of several years between the Veteran’s last VA outpatient treatment records and the November 2015 examination. As such, it is entirely possible that the Veteran’s symptoms reflected in the examination report are indicative of the severity of the Veteran’s acquired psychiatric disorder prior to November 2015. For the foregoing reasons, and after having resolved reasonable doubt in favor of the Veteran, the Board finds a 70 percent initial rating is warranted for the Veteran’s acquired psychiatric disorder for the period prior to November 19, 2015. However, upon a review of the record, the Board observes there is no evidence of gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, or own occupation, or own name. In addition, the Board notes the Veteran has maintained a functional relationship with his girlfriend of more than 30 years, in addition to members of her family and others, throughout the period of the claim. For these reasons, the Board finds the evidence does not show that both the Veteran’s occupational and social impairment have been “total” at any time during the period of the claim. Accordingly, the Board has determined a rating higher than 70 percent for the Veteran’s acquired psychiatric disorder is not warranted for the periods prior to or beginning November 19, 2015. REMAND The Board finds additional development is required before the Veteran’s claim of entitlement to a TDIU may be decided. A February 2013 notice letter to the Veteran and his representative contained adequate notice of the information and evidence necessary to substantiate a claim for a TDIU and also provided the Veteran with VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability, for completion; however, the Veteran did not return this application. The nature of the Veteran’s work history is unclear. In this regard, the Board notes that although the record indicates the Veteran is no longer working, he has reported he worked at least part-time as a truck driver during some portion of the period of the claim. Under these circumstances, the Board finds a remand is warranted in order to again solicit a completed VA Form 21-8940 from the Veteran, so that he may provide up-to-date information regarding his employment history and current status in support of his claim. The matter is REMANDED for the following actions: 1. Solicit a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, from the Veteran, detailing his work history and current employment status 2. Undertake any other development determined to be warranted. (Continued on the next page)   3. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel