Citation Nr: 18146004 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 18-22 405 DATE: October 30, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for acquired psychiatric disorder categorized as anxiety disorder, obsessive-compulsive disorder with panic attacks and depression, prior to September 16, 2008, and to a rating in excess of 50 percent from that date is denied. Entitlement to an effective date for a grant of total disability based on individual unemployability (TDIU) is granted from June 29, 2006. FINDINGS OF FACT 1. Prior to September 16, 2008, the Veteran’s acquired psychiatric disorder manifested in symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; from that date the Veteran’s acquired psychiatric disorder manifested in symptoms productive of occupational and social impairment with reduced reliability and productivity. 2. The evidence supports that from June 29, 2006, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for acquired psychiatric disability prior to September 16, 2008, and to a rating in excess of 50 percent from that date have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.126, 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an effective date for a grant of total disability based on individual unemployability (TDIU) have been met from June 29, 2006. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1952 to December 1955. The Veteran died in October 2010 and the appellant in this appeal is the Veteran’s surviving spouse. In September 2014, VA issued a regulation regarding substitution following a claimant’s death, which has been codified at 38 C.F.R. § 3.1010. That regulation states that if a claimant dies on or after October 10, 2008, a person eligible for accrued benefits under 38 C.F.R. § 3.1000 (a)(1-5) may, in priority order, request to substitute for the deceased claimant in a claim for periodic monetary benefits under laws administered by VA, or an appeal of a decision with respect to such claim, that was pending before the AOJ or the Board when the claimant died. Upon a grant of a request to substitute, the substitute may continue the claim or appeal to completion. See 38 C.F.R. § 3.1010 (a). A specific request to substitute for a claimant must be made in writing with the AOJ by an eligible person no later than one year after the initial claimant’s death; all determinations regarding a request to substitute must be made in the first instance by the AOJ, subject to the provisions of 38 C.F.R. § 20.1302. See 38 C.F.R. § 3.1010 (b), (c)(1), (e). In lieu of a specific request for substitution, a claim for accrued benefits, survivors’ pension, or DIC benefits by an eligible person is deemed to include a request to substitute if a claim for periodic monetary benefits, or an appeal of a decision with respect to such claim, was pending before the AOJ or the Board when the claimant died. See 38 C.F.R. § 3.1010 (c)(2). As the appellant’s claim for accrued benefits was received within one year of the Veteran’s death and she has continually pursued the appeal, the Board considers her to have been properly substitution and will precede with adjudication of the appeal. 1. Entitlement to a disability rating in excess of 30 percent for acquired psychiatric disorder prior to September 16, 2008, and to a rating in excess of 50 percent from that date The appellant contends that the Veteran’s psychiatric disorder symptoms were more severe than the currently assigned disability ratings during the period on appeal. After a review of the evidence of record, the Board finds that a disability rating in excess of 30 percent prior to September 16, 2008, and in excess of 50 percent from that date for acquired psychiatric disorder categorized as anxiety disorder, obsessive-compulsive disorder with panic attacks and depression is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Mental disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130. In addition, the fourth edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130. However, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5). See 79 Fed. Reg. 45,094 (August 4, 2014). VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). In the present case, the RO certified the Veteran’s appeal to the Board in April 2018, which is after August 4, 2014. Thus, the version of 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case. In any event, the Board will still consider any private or VA examiner’s discussion of both the DSM-IV and DSM-5 in adjudicating the current Veteran’s psychiatric disorder claim, in order to provide the Veteran with every benefit of the doubt. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). As provided by the General Rating Formula, a 30 percent rating is assigned for psychiatric disabilities when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is assigned when 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. Id. A 70 percent rating is in order 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when 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; and memory loss for names of close relatives, own occupation, or own name. Id. A veteran need not exhibit “all, most, or even some” of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Rather, the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan, 16 Vet. App. at 442. The Federal Circuit has clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration, but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. Id. The Veteran is service-connected for acquired psychiatric disorder categorized as anxiety disorder, obsessive-compulsive disorder with panic attacks and depression at 30 percent from July 16, 1996, and at 50 percent from September 16, 2008. After a review of the evidence, the Board finds that an increased disability rating for these periods is not warranted for the acquired psychiatric disorder. At the December 1997 RO hearing, the Veteran testified that he felt that his anxiety disorder “cut down on [his] ability to think.” In an October 2001 mental health treatment note, the medical provider noted that the Veteran’s psychiatric symptoms were stable. The Veteran had nightmares and isolating behavior. During this period of time, the Veteran was regularly attending group therapy for psychiatric disorders. During a February 2004 hospital admission for a separate condition, the Veteran received a psychiatric consultation resulting in a change of medication for his obsessive-compulsive disorder and PTSD. At the September 16, 2008 VA psychiatric examination, the examiner noted memory problems and that the Veteran was taking several prescription medications to include anti-psychotic, anti-depression, and anti-anxiety varieties. Reported symptoms included depressed mood, memory issues, nightmares, episodes of wandering. The Veteran’s anxiety symptoms were noted as increasing due to his development of dementia. At the February 2010 VA psychiatric examination, the Veteran had severe memory problems and the family informed the examiner that the Veteran had been diagnosed with Alzheimer’s disease about 3 to 6 years earlier. The examiner diagnosed mild dementia and reported that due to the development of dementia, the Veteran’s previous diagnosis of PTSD was likely no longer a current problem as the Veteran’s stressors from the war would be lost in his memory. The Veteran was taking a variety of prescription psychiatric medications. The family reported that the Veteran’s compulsive behaviors manifested as picking at skin and hair, clearing the throat, and sucking on his teeth and had manifested in the previous few years. The Veteran demonstrated coherent speech, appropriate affect, unremarkable psychomotor activity, and a good mood. The family noted that the Veteran was irritable at home, but behaved better when at the doctor. The Veteran was unable to spell a word forward and backward, and unable to perform a basic math equation. The Veteran did not know his current age. The Veteran knew the month but not the current year or day of the week, but did know where he was. There were no noted delusions. Judgment was not intact, i.e. the Veteran would not know the outcome of his actions, but he did understand, at least partially, that he had a mental health problem. There was no reported suicidal or homicidal ideation. The examiner noted that the Veteran’s current memory deficits, poor insight, and abstraction and problem-solving deficits formed the basis of the diagnosis of dementia. The family informed the examiner that the Veteran’s obsessive-compulsive behaviors from years past were no longer exhibited, although they reported occasional bouts of anxiety described as mild compared to attacks from years prior. The examiner opined that the Veteran’s current anxiety symptoms would not form the basis of a DSM-IV diagnosis. Based on the medical and lay evidence of record as discussed above, the Board finds that a disability rating in excess of 30 percent prior to September 16, 2008, or in excess of 50 percent from that date for the Veteran’s acquired psychiatric disorder is not warranted. Prior to September 2008, the Veteran exhibited symptoms that were more productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran exhibited symptoms related to his OCD and anxiety disability such as nightmares and isolating behavior. The Veteran went to medical appointments on his own, until such time as it appears that he developed dementia for which he was not service-connected, and attended group therapy where his symptoms were noted as stable. The Veteran was on psychiatric medication to control his symptoms. As noted above, the Veteran’s anxiety disorder was exacerbated as explained in the 2008 VA examination by the development of dementia. After 2008, as the 2010 VA examiner discussed, and the family reported, the Veteran’s anxiety and OCD-type symptoms had decreased, while he exhibited stronger symptoms of dementia such as decreased memory and cognitive skills. While the Veteran’s psychiatric disability at this time, according to the examiner, would not have met the DSM-IV criteria, the Board finds in favor of the Veteran to retain the assigned 50 percent disability rating for the Veteran’s acquired psychiatric disorder. Accordingly, the Board finds that the 30 percent disability rating for the Veteran’s acquired psychiatric disorder categorized as anxiety disorder, obsessive-compulsive disorder with panic attacks and depression, prior to September 16, 2008, and 50 percent from that date, is appropriate, and the appeal for an increased rating is denied. 2. Entitlement to an effective date for a grant of total disability based on individual unemployability (TDIU) from June 29, 2006 The appellant, through her representative, argues in the September 2018 letter to the Board that the Veteran met the TDIU percentage criteria as of June 29, 2006, and, although she would like a TDIU granted to the original date of claim in 1996, at the least she would like the effective date of the TDIU to be June 29, 2006. The Board finds that based on a review of the evidence, the Veteran met the percentage requirements and was unemployable due to his service connected disabilities as of June 29, 2006, and therefore a grant of TDIU is warranted as of that date. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A 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. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. If a Veteran does not meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran is service-connected for psychiatric disorder diagnosed as anxiety disorder, obsessive-compulsive disorder with panic attacks and depression at 30 percent from July 16, 1996, and 50 percent from September 16, 2008; varicose veins, left lower extremity at 40 percent from June 29, 2006, and 60 percent from June 30, 2010; left knee disability at 10 percent from July 16, 1996, and 20 percent from October 25, 2002; and right thumb fracture at a noncompensable rating since July 16, 1996. The total disability rating is 40 percent from July 16, 1996; 70 percent from June 29, 2006; and 80 percent from September 16, 2008. Therefore, prior to June 29, 2006, the Veteran did not meet the schedular requirements for TDIU consideration. In a previous decision, the RO granted TDIU from September 16, 2008. As the Veteran, and subsequently the appellant, originally sought TDIU from prior to that date, the February 2018 rating decision to grant TDIU from September 16, 2008 does not represent a full grant of the benefits sought on appeal, thus the Board continues to have jurisdiction. AB v. Brown, 6 Vet. App. 35 (1993). The veteran submitted a claim for increased rating for his leg disability in July 1996. At a December 1997 RO hearing officer hearing, the Veteran contended that he was unable to work due to his service-connected disabilities. The leg disability made it hard to walk and he also felt that he had a hard time focusing. The Veteran retired from his job as a security guard in 1996. To support his contentions, the Veteran submitted a letter dated December 1997 from his previous employer that noted the Veteran’s job performance had “suffered” recently and opined that it was “due to physical and/or emotional problems.” An additional letter dated December 1997 from the Veteran’s doctor stated that the Veteran had left his job, but with the doctor’s continued treatment and “being away from job stressors,” the doctor felt that the Veteran’s psychiatric conditions would improve. In a December 1997 written statement, the Veteran contended that he was unable to work due to his leg and psychiatric disabilities. In an October 2001 mental health treatment note, the medical provider noted that the Veteran’s psychiatric symptoms were stable. The Veteran had nightmares and isolating behavior. An October 2002 VA examination for the Veteran’s joints noted that his legs were swollen. At the August 2006 VA examination for veins, the examiner noted that the Veteran’s varicose vein condition had been progressively worse. The Veteran wrapped both legs with ACE bandages. The Veteran reported pain in both legs after walking a certain distance, but pain was relieved by resting. The Veteran’s left leg had massive edema with diffuse varicosities large and small size with ulcerations measuring 3 x 3 cm. The doctor noted that exercise was not precluded by the varicose vein disability. The effect on employment was not noted as the Veteran was not employed at the time of the examination and the doctor made no opinion on the effects of the condition on employment. The examiner noted a severe effect on ADLs like chores and shopping, and exercise was prevented, although not precluded. There was moderate effect on bathing. At the September 2008 VA psychiatric examination, the examiner noted memory problems and that the Veteran was taking several prescription medications to include anti-psychotic, anti-depression, and anti-anxiety varieties. Reported symptoms included depressed mood, memory issues, nightmares, episodes of wandering. The Veteran’s anxiety symptoms were noted as increasing due to his development of dementia. At the February 2010 VA psychiatric examination, the Veteran had severe memory problems and the family informed the examiner that the Veteran had been diagnosed with Alzheimer’s disease about 3 to 6 years earlier. The examiner diagnosed mild dementia and noted that the Veteran was blind. Resolving reasonable doubt in favor of the Veteran, the Board finds that a TDIU is warranted from the earliest date that the Veteran met the schedular requirements, June 29, 2006. Prior to that date, the evidence shows that the Veteran had complaints about his leg pain, and anxiety symptoms were controlled by medication, and although he had left his job in security, the evidence does not support that the Veteran was unable to obtain or maintain a different type of less stressful or physically demanding employment. The Veteran did not meet the schedular TDIU requirements, but the Board finds that the Veteran was not unemployable at this time, and, therefore it declines to refer the appeal to the Director of Compensation and Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). At the 2008 VA examination, the examiner noted that the dementia was exacerbating the anxiety. Although the Veteran was not service-connected for dementia or Alzheimer’s, the Veteran’s family estimated that 3 to 6 years prior to the February 2010 VA examination is when the Veteran was diagnosed with Alzheimer’s. Thus, the 2006 timeframe would be between 3 and 6 years earlier and coincide with the assignment of ratings that met the schedular requirements for TDIU of June 29, 2006. The psychiatric symptoms combined with the Veteran’s left leg varicose veins and left knee disability contributed to the unemployability of the Veteran from that date. Accordingly, the Board finds that a TDIU is warranted from June 29, 2006. 38 C.F.R. § 4.16. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Miller, Erin (BVA)