Citation Nr: 18144049 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 08-37 026 DATE: October 23, 2018 ORDER A rating of 50 percent for undifferentiated somatoform disorder and generalized anxiety disorder prior to October 19, 2012, is granted. A rating of 70 percent for undifferentiated somatoform disorder and generalized anxiety disorder, but not higher, from October 19, 2012, to May 12, 2015, is granted. A rating in excess of 70 percent for undifferentiated somatoform disorder and generalized anxiety disorder for the period from May 12, 2015, is denied. An earlier effective date of June 1, 2014, for the award of a total disability rating based upon individual unemployability (TDIU) is granted.   VETERAN’S CONTENTIONS The Veteran contends that his service-connected undifferentiated somatoform disorder and generalized anxiety disorder warrant disability ratings higher than the disability ratings currently assigned under 38 C.F.R. § 4.130, Diagnostic Code 9421. The Veteran contends that he has not been able to secure and follow gainful employment since April 2014. FINDINGS OF FACT 1. For the period prior to October 19, 2012, the Veteran's undifferentiated somatoform disorder and generalized anxiety disorder was productive of occupational and social impairment with reduced reliability and productivity. 2. For the period from October 19, 2012, the Veteran's undifferentiated somatoform disorder and generalized anxiety disorder was productive of an occupational and social impairment with deficiencies in most areas, but not higher. 3. For the period from June 1, 2014, the competent and credible evidence of record demonstrates that the Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the period prior to October 19, 2012, the criteria for a rating of 50 percent for undifferentiated somatoform disorder and generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.19, 4.21, 4.126, 4.130, Diagnostic Code 9421. 2. For the period from October 19, 2012 to May 12, 2015, the criteria for a rating of 70 percent for undifferentiated somatoform disorder and generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.19, 4.21, 4.126, 4.130, Diagnostic Code 9421. 3. For the period from May 12, 2015, the criteria for a rating in excess of 70 percent for undifferentiated somatoform disorder and generalized anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.19, 4.21, 4.126, 4.130, Diagnostic Code 9421. 4. The criteria for an earlier effective date of June 1, 2014 for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to July 2004. These matters come to the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. These matters were previously before the Board in July 2012, January 2015, and November 2017 at which times they were remanded for further development. 1. Entitlement to increased ratings for undifferentiated somatoform disorder and generalized anxiety disorder Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a) (2017). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. The General Rating Formula for Mental Disorders, which is set forth in 38 C.F.R. § 4.130, provides in pertinent part: A 10 percent evaluation is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is 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 evaluation is warranted where 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where 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. VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. See Mittleider v. West, 11 Vet. App. 181 (1998). Prior to October 19, 2012 Beginning with the period prior to October 19, 2012, following a review of the record, the Board finds that the Veteran's symptoms approximate occupational and social impairment with reduced reliability and productivity, entitling him to a 50 percent disability rating. In this regard, the evidence of record includes an April 2006 report of VA examination which documents that the Veteran reported the effects of his symptoms on his employment and overall quality of life included spontaneous affect, anxiety, obsessive compulsive tendencies, problems sleeping, and black outs/dissociative periods. The examiner noted that the Veteran was well dressed, well groomed, articulate, verbal, mentally intact, and well oriented. The examiner also noted that the Veteran had excellent social skills; excellent reasoning; and his thought processes were logical, coherent, and relevant. However, the examiner noted that the Veteran had symptoms of memory loss/dissociative periods, emotional distance, and panic attacks. The evidence of record also includes a February 2009 report of VA examination which documents that the Veteran reported the effects of his symptoms on his employment and overall quality of life included memory problems, sleep problems, angry mood, and depression. The examiner noted that the Veteran was married for 21 years, worked as a construction technician for 5 years, had friends at work, and was able to engage in activities of daily living. The examiner also noted that the Veteran denied suicidal or homicidal ideations, and psychosis; his thought process was logical, coherent, and relevant; and he was well-groomed, cooperative, and intelligent. However, the examiner noted marital problems, panic attacks, insomnia, nightmares, racing thoughts, obsessional ideation, mild memory problems, and anger control issues. VA treatment records document symptoms of irritability with hostile attitude, anger outbursts, loss of motivation, lack of concentration, poor recall, short term memory impairment, difficulty focusing, feelings of foreshortened future, feelings of detachment, avoidance, strained relationship with family, restless, and feelings of panic in groups of people. VA treatment records also document anxiety and depression, but no psychotic, or violent ideas. A letter dated January 2009 from the Veteran’s private physician, Dr. Bryan Bolwahnn (Dr. Bolwahnn), indicated that the Veteran’s symptoms appeared to have increased and his level of functioning was declining; the Veteran was having difficulty being successful at work and his relationships with family members and friends was becoming impaired. This evidence demonstrates a disability more nearly approximating a 50 percent level. A 70 percent disability level is not more nearly approximated as the Veteran did not have an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms. He continued working and maintained a positive relationship with his wife and family. At a February 2009 VA examination, the Veteran denied suicide ideation. He denied any interference with his work. Therefore, it is after careful review of the evidence that the Board finds that the preponderance of evidence demonstrates that prior to October 19, 2012; the Veteran's symptoms have approximated the schedular criteria for a disability rating of 50 percent. From October 19, 2012 Turning to the period beginning October 19, 2012, the Board finds that from October 19, 2012 to May 12, 2015, the Veteran's symptoms approximated a 70 percent disability level. In this regard, the evidence of record includes an October 2012 report of VA examination which documents that the Veteran reported the effects of his symptoms on his employment and overall quality of life included marital problems, trouble expressing feelings, anxiety, depression, anger, irritability, panic attacks, sleep disturbance, and decreased appetite. The examiner noted symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impairment of short and longterm memory, flattened affect, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or worklike setting, inability to establish and maintain effective relationships, and obsessional rituals which interfere with routine activities. However, the examiner also noted that the Veteran was married, employed, and denied any current suicidal ideation. The examiner opined that the best description of the Veteran’s psychiatric impairment was: occupational and social impairment with reduced reliability and productivity. The VA examiner’s summary indicates many of the symptoms of the 70 percent disability level, which culminated in occupational and social impairment with deficiencies in most areas, such as work, family relations, and mood. The next higher disability level, 100 percent is not more nearly approximated. The Veteran’s private treatment records dated July 2014 document symptoms of depression, helplessness, and decreased sleep; and that the Veteran was divorced and unemployed. However, the Veteran denied psychotic features and suicidal ideation. The Veteran’s private treatment records dated October 2014 document that the Veteran was negative for symptoms of anxiety, depression, insomnia, and memory loss. In fact, he was admitted for in-patient treatment in July 2014. He reported no psychotic features, as indicative of a 100 percent disability level. He had suicide ideation, but was not a danger to himself (or others). Also representative, he continued undergoing VA treatment, and reported in February 2015 that he had 3 children and had a good relationship with all of them. In fact, he declined a voluntary admission due to his daughter's wedding which was planned for that week. He had not remarried since his divorce but was dating someone. Thus, collectively, the evidence indicates a total occupational impairment, but not a total social impairment during this time period. Therefore, it is after careful review of the evidence that the Board finds that the evidence demonstrates a 70 percent disability level from October 19, 2012. From May 12, 2015 Lastly, for the period from May 12, 2015, following a review of the record, the Board finds that a disability rating higher than 70 percent is not warranted. In this regard, the evidence of record includes May 2015 VA treatment records, and April 2016 and September 2016 VA reports of examination which document the Veteran’s reported suicidal ideation, including suicidal ideation without plan or intent. See Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 435, *19 (Mar. 27, 2017) (holding that suicidal ideation need not be active in nature to warrant the assignment of a 70 percent rating; rather, the appropriate inquiry is whether either passive or active suicidal ideation, in the absence of other symptoms similar to those listed as examples in the criteria for a 70 percent rating, results in social and occupational impairment with deficiencies in most areas). Additionally, an April 2016 VA report of examination documents that the Veteran reported the effects of his symptoms on his employment and overall quality of life included poor concentration, depression, and anxiety. The examiner noted that the Veteran was divorced and unemployed and his symptoms included depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; impairment of short and long-term memory; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and obsessional rituals which interfere with routine activities. However, the examiner also noted that the Veteran lived with his son, had a girlfriend with whom he had a good relationship, was appropriately dressed and groomed, alert, oriented to all spheres, thought process was logical and coherent, his speech fluent, and he reported no psychotic process. The examiner opined that the best description of the Veteran’s psychiatric impairment was: occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. A September 2016 VA report of examination documents that the Veteran reported the effects of his symptoms on his employment and overall quality of life included feelings of hopelessness, worthlessness, anhedonia, suicidal thoughts (no intentions or plans), panic attacks (2 to 3 times per day), anxiety, and poor sleep. The examiner noted symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and obsessional rituals. However, the examiner also noted that the Veteran reported good relationships with his family and girlfriend, he was alert and oriented to all spheres, thought process logical and coherent, judgment and insight intact, speech fluent and he denied psychotic processes. The examiner opined that the best description of the Veteran’s psychiatric impairment was: occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The evidence of record does not support a rating of 100 percent. The Veteran has not reported and there is no record of hallucinations, delusions, gross impairment in thought processes or communication, inappropriate behavior, an inability to perform the activities of daily living, or any of the other markers of total social impairment. To the contrary, he maintained a relationship with his children and a girlfriend. Therefore, it is after careful review of the evidence that the Board finds that the preponderance of evidence demonstrates that from May 12, 2015; the Veteran's symptoms approximated the schedular criteria for a disability rating of no more than 70 percent. In so finding, the Board looked to the frequency, severity, and duration of the Veteran's impairment, and not transient symptoms, to assess his disability picture. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 2. Entitlement to an effective date earlier than July 2, 2015 for a total disability rating based on individual unemployability (TDIU) The Veteran contends that he has not been able to secure and follow gainful employment since April 2014. As will be explained below, the Board finds that the Veteran is entitled to an earlier effective date of June 1, 2014 for TDIU. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). An award based on a claim for an increase in compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of application therefore. 38 U.S.C. § 5110 (a). The effective date for an increased rating may be assigned on the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). For increased ratings claims, however, the RO may assign the earliest date when it is ascertainable that the increase occurred, provided the claim for an increased rating was received within one year of the date that the increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134-35 (1992). The effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Assigning the appropriate effective date for TDIU involves determining (1) when the Veteran's claim for TDIU was received, and if possible (2) when it became factually ascertainable that the Veteran could not secure and follow gainful employment. See 38 C.F.R. §§ 3.155, 3.340, 3.400(o)(2), 4.16(a); Hazan v. Gober, 10 Vet. App. 511 (1992); Faust v. West, 13 Vet. App. 342, 356 (2000). With respect to the first question, the Veteran filed a claim for TDIU in March 2016. However, a claim for TDIU is part and parcel of an increased rating claim where evidence of unemployability is submitted in the course of a claim for a higher rating for one or more service-connected disabilities, and the evidence of unemployability pertains to the service-connected disability or disabilities at issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA received the Veteran's claim for an increased rating for undifferentiated somatoform disorder and generalized anxiety disorder on December 22, 2005. During the pendency of that claim, the Veteran submitted evidence of unemployability due to his service-connected undifferentiated somatoform disorder and generalized anxiety disorder. Specifically, the Veteran submitted January 2016 and February 2016 letters from his private physicians that his mental condition rendered him unemployable. These letters raised the issue of whether the Veteran was unemployable due to his serviced-connected undifferentiated somatoform disorder and generalized anxiety disorder for which he was seeking a higher evaluation. As a result, an effective date earlier than the March 2016 date of claim is available in this instance. Turning to the question of when it became factually ascertainable that the Veteran could not secure and follow gainful employment. The term "substantially gainful employment" means "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In other words, it is an occupation "that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . . ." Faust v. West, 13 Vet. App. 342, 356 (2000). In this regard, the evidence of record includes a form 21-4138 Statement in Support of Claim in which the Veteran reported that he last had full time employment in April 2014; he subsequently worked from March 2015 to May 2015, but was physically and mentally unable to perform the duties of the position and received warnings several times. VA form 21-4192 Request for Employment Information from his employers document that the Veteran last worked from April 1, 2015, to July 1, 2015, as a Service Advisor, earned $4,000, and was terminated because he was physically unable to work. Prior to that, the Veteran was employed from January 3, 2013, to June 1, 2014, as a Safety Instructor, earned $60,000, and was laid off. The medical evidence of record includes an October 2012 VA report of examination in which the examiner documented that the Veteran reported that he had a lot of anxiety and could not focus at one job and another job was too demanding. The examiner opined that the Veteran would have significant difficulties in his ability to function in his normal occupational environment due to his somatoform disorder and generalized anxiety disorder; the Veteran’s mood, anxiety, memory and interpersonal difficulties would have a direct impact on his functioning and would likely be problematic in many employment settings. A letter dated February 26, 2016 from Dr. Luelf documented that the Veteran continued to try to work, even attempting a job working 12 hours per day 5-6 days per week as a Service Advisor for Sterling Chrysler, but could not tolerate the mental pressure, as he was having difficulty comprehending what he needed to do. An April 2016 VA report of examination documented that the Veteran attempted to work for an automotive company in 2015, but was unable to perform the job due to poor concentration and physical problems. The Board finds an earlier effective date for entitlement to TDIU is warranted effective June 1, 2014. The evidence, including medical treatment records, demonstrates that his service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment from that date onward. In particular, the Board finds most probative the October 2012 VA examination report in which the examiner opined that the Veteran would have significant difficulties in his ability to function in his normal occupational environment due to his somatoform disorder and generalized anxiety disorder. This disability picture appears to have culminated in the Veteran leaving full-time employment as of June 1, 2014. The Board acknowledges that the Veteran was employed from April 1, 2015 to July 1, 2015 as a Service Advisor, however, the Board finds that this employment was not substantial or gainful as defined above; the Veteran earned a salary of only $4,000, a salary well below the poverty threshold for one person. An effective date earlier than June 1, 2014 is not warranted because the Veteran was substantially and gainfully prior to June 1, 2014; the Veteran was employed from January 3, 2014 to June 1, 2014 as a Safety Instructor and earned a salary of $60,000; a salary well above the poverty threshold for one person. (Continued on the next page)   In light of the foregoing, the Board finds that it became factually ascertainable that the Veteran was unable to secure and follow gainful employment due to his service-connected disabilities as of June 1, 2014. Accordingly, the claim is granted to this extent. C. BOSELY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel