Citation Nr: 18143939 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 14-43 536 DATE: October 22, 2018 ORDER An initial rating more than 70 percent from August 23, 2011 and continuing thereafter for the Veteran’s acquired psychiatric disorder, to include major depressive disorder, dysthymic disorder and polysubstance dependence is denied. A total disability rating based on individual unemployability (TDIU) due to the service-connected acquired psychiatric disorder is granted. FINDINGS OF FACT 1. For the entirety of the rating period on appeal, the Veteran’s acquired psychiatric disorder caused occupational and social impairment with deficiencies in most areas, including speech intermittently illogical, obscure or irrelevant; impaired impulse control; suicidal ideation; near-continuous panic or depression and difficulty adapting to stressful circumstances, including work or a work-like setting. 2. With resolution of the doubt in his favor, the Veteran’s service-connected acquired psychiatric disorder made him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish an initial rating more than 70 percent for the entirety of the rating period on appeal have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9434 (2017). 2. The criteria to establish TDIU due to the service-connected acquired psychiatric disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 2001 to September 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 and a November 2013 rating decision of the Roanoke, Virginia Regional Office (RO). The Board has recharacterized the issue on appeal to accurately reflect the Veteran’s psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). In April 2018, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. Acquired psychiatric disorder, to include major depressive disorder, dysthymic disorder and polysubstance dependence The Veteran is rated 70 percent disabling from August 23, 2011 and continuing thereafter for his acquired psychiatric disorder. Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). Major depressive disorder (MDD) is evaluated under the General Rating Formula for Mental Disorders. 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 a work-like setting); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9434 (2017). A 100 percent evaluation is warranted if there is 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. The U.S. Court of Appeals for the Federal Circuit has noted the “symptom-driven nature” of the General Rating Formula and that “a Veteran 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.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, if the evidence shows that a Veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. In a September 2011 private treatment record, the Veteran reported experiencing anxiety when driving on the interstate. He also reported experiencing sleep impairment. In December 2011, the Veteran was afforded a VA examination. The Veteran reported having been married to his second wife since February 2009. The Veteran and his wife live together with three children: one child from the current marriage, one child from the Veteran’s previous marriage and one child from the wife’s previous marriage. He also reported having been terminated from several post-service jobs due to his absence, lack of motivation and inability to tolerate stress. The examiner diagnosed the Veteran with major depressive disorder, dysthymic disorder and polysubstance dependence and indicated that it was not possible to differentiate what symptoms were attributable to each diagnosis. The examiner indicated that the Veteran has a depressed mood; anxiety; panic attacks that occur weekly or less often; near-continues panic or depression affecting his ability to function independently, appropriately and effectively; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting and suicidal ideation. The Veteran’s impairment was summarized as occupational and social impairment with reduced reliability and productivity. It was also noted that the Veteran has a fear of losing control of his temper, despite having no history of ever doing so. In a February 2013 written statement, the Veteran indicated that he “often feels dead inside and like dying” and that he experiences little joy from activities he used to enjoy. He also reported experiencing anxiety from driving and being in public. In a February 2013 written statement, the Veteran’s wife indicated that the Veteran experiences depression, suicidal thoughts, daily mood changes and an inability to focus or complete simple tasks. She also indicated that the Veteran has trouble making dinner for the family due to his lack of motivation and that he wants to visit his friends to escape the reality of his responsibilities. In February 2013, the Veteran was afforded another VA examination. The Veteran reported having been married since 2009 with three children and that “all get along decently.” The Veteran has several friends he stays in contact with by phone at least once per week. He visits his sisters several times a year but does not stay in contact with his brother. The Veteran enjoys hunting, fishing, reading and searching for artifacts. The Veteran worked at Target from September 2012 to January 2013 and was terminated for absenteeism and lacking motivation to attend work. The Veteran indicated that the job was stressful and it was difficult to work with others. He indorsed having suicidal ideations and indicated that things would be better if he was gone. He also reported that he punches himself and cuts his hand less than one time per year. The examiner indicated that the Veteran has a depressed mood; anxiety; panic attacks that occur weekly or less often; near-continuous panic or depression affecting his ability to function independently, appropriately and effectively; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work-like setting; suicidal ideation; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner summarized the Veteran’s total impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and mood. In a January 2014 VA treatment record, the Veteran indicated that his depression was better and he has more energy, interest and concentration. He denied experiencing hallucinations. The Veteran takes care of the children while his wife works. He reported experiencing anxiety attacks while driving one time every six months. He indicated that he looked forward to the upcoming weekend to visit his friends. The examiner observed that the Veteran was groomed, pleasant, cooperative and made good eye contact. There was no abnormal involuntary movement or psychomotor agitation. Speech, affect and mood were normal. His thought process was linear, logical and goal directed. His short-term memory, long-term memory, attention and concentration were intact. In his April 2018 Board hearing, the Veteran testified to having a “good relationship” with his wife and has been married since 2009. He spends his day maintaining the house, picking up his children from school and cooking. He also has three close friends he occasionally sees. The Veteran also testified that he experiences anxiety in public and that his depression results in loss of energy, pleasure, motivation and sleep. He also has trouble maintaining concentration and attention due to the stress from noise and people. The Veteran, along with his family, live in an isolated and wooded area without neighbors. He does not enjoy being around certain family members. He also testified having trouble maintaining his hygiene as he will not bathe for several days due to a lack of motivation. The Veteran also testified to sometimes experiencing visual hallucinations. In July 2018, the Veteran underwent a private examination in his home. The Veteran reported experiencing panic attacks that result in dizziness, passing out, sweating, and shortness of breath. Shopping with his wife causes him to get angry and hypervigilant. When he is out in public, he is looking for threats and will sit with his back against the wall. He lives with his family in a socially isolated environment. The Veteran’s wife reported that his behavior is the worst when he is irritated. He is disconnected from his wife and children when engaging in conversation. The Veteran goes off by himself and away from people. When in public, the Veteran assumes someone is watching his family. He also questions his wife’s response to everything. The Veteran must pull over when he drives due to his panic attacks. The examiner observed that the Veteran was groomed and casually dressed. He was alert and oriented to time, place and person. His speech was clear, relevant and goal-directed. Thought content focused on hopelessness, cynicism, and nihilism. The Veteran’s mood was depressed, anxious and paranoid with feelings of guilt, worthlessness, poor self-esteem, psychomotor agitation, diminished frustration tolerance, anhedonia and isolation. He denied experiencing hallucinations, suicidal ideation and homicidal ideation. His short and long-term memory was normal. The examiner indicated that the Veteran had depression, paranoia, suicidal ideation, anxiety, fear, panic attacks, sleep disturbance, somatization, psychomotor agitation, flat affect, decreased energy, mood disturbance, appetite disturbance, diminished tolerance frustration, anhedonia, feelings of worthlessness, poor self-esteem, social withdrawal and isolation. A preponderance of the evidence is against a finding of an initial rating more than 70 percent. The evidence reflects the Veteran’s reports of experiencing hallucinations but not on a persistent basis: January 2014 VA treatment record – the Veteran denied experiencing hallucinations; April 2018 Board hearing – the Veteran testified that he sometimes experiences visual hallucinations and in the July 2018 private examination – the Veteran denied experiencing hallucinations. In addition, the evidence does not indicate that the Veteran is a persistent danger to himself or others: February 2013 VA examination – the Veteran reported that he punches himself and cuts his hand less than one time per year; and the Veteran’s wife’s statements do not suggest that he is a persistent danger to himself or others. The Veteran has several friends that he communicates with and spends time. He also takes care of the house and children while his wife works. Furthermore, the evidence does not indicate that the Veteran experiences any other symptoms that may warrant a 100 percent rating. Therefore, an initial rating more than 70 percent is not warranted and the claim is denied. TDIU TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2017). The Veteran is rated 70 percent disabling for his acquired psychiatric disorder. Therefore, the Veteran’s service-connected disability meets the percentage threshold in 38 C.F.R. § 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. See 38 C.F.R. § 4.16(a) (2017). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. Thus, the central question is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In the Veteran’s December 2012 application for increased compensation based on unemployability, the Veteran noted that he was currently employed at a retail store. However, the application indicates that the Veteran has had several jobs over a relatively short period of time. The February 2013 VA examiner opined that the Veteran’s depression does not prohibit physical or sedentary employment; however, his symptoms interfere with his ability to maintain substantially gainful employment. In his April 2018 Board hearing, the Veteran testified having last worked in January 2013 and that he voluntarily quit because the night shift worsened his depressive symptoms. He also had trouble tolerating other co-workers and was easily irritated. In an April 2018 VA treatment record, a VA medical doctor opined that the Veteran cannot maintain gainful employment due to his depression because he is at risk of recurrence of more severe depression if he returns to the stresses of a work environment. The VA medical doctor further explained that the Veteran’s irritability impacts his ability to work because it results in an inability to focus on work-related tasks and adapting to stressful situations in the work environment. It was also noted that the Veteran cannot complete a normal work-week without interruptions from his depression. The July 2018 private examiner opined that the Veteran cannot function in any job capacity due to the symptoms from his acquired psychiatric disorder. The Board will grant based on the benefit-of-the-doubt doctrine. The Veteran’s April 2018 Board hearing testimony and VA treatment record reflects that the Veteran’s acquired psychiatric disorder renders him unable to maintain gainful employment. In addition, the July 2018 private examiner indicated that the Veteran cannot function in any job capacity due to his acquired psychiatric disorder. Although the February 2013 VA examiner opined that the Veteran’s depression does not prohibit physical or sedentary employment, it was noted that his symptoms interfered with his ability to maintain substantially gainful employment. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, TDIU is warranted and the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel