Citation Nr: 18146998 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 15-43 566 DATE: November 2, 2018 ORDER Entitlement to an effective date prior to June 17, 2013 for a 70 percent rating for dysthymic disorder is granted. Entitlement to an effective date prior to June 17, 2013 for a total disability of individual unemployability (TDIU) is granted. Entitlement to an increased rating in excess of 70 percent for dysthymic disorder is denied. FINDINGS OF FACT 1. The Veteran’s dysthymic disorder was manifested by suicidal ideation, homicidal ideation, audio hallucinations, and impaired impulse control as of October 19, 2012. 2. Resolving reasonable doubt in his favor, since October 19, 2012, the manifestations of the Veteran’s service-connected disabilities have been sufficiently incapacitating as to result in unemployability. 3. The Veteran’s dysthymic disorder is not manifested by symptoms equivalent in severity, frequency, and duration to 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. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of October 19, 2012 for a 70 percent rating for dysthymic disorder have been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 2. The criteria for entitlement to an effective date of October 19, 2012 for TDIU have been met. 38 U.S.C. § 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. 3. The criteria for rating in excess of 70 percent for dysthymic disorder have not been met at any point during the pendency of this claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(a), 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to December 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Little Rock, Arkansas. Effective Date The effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o). Accordingly, the effective date of an award of increased compensation may be assigned up to one year prior to the date of claim, if an ascertainable increase in disability is established during that period. Entitlement to an effective date prior to June 17, 2013 for a 70 percent rating for dysthymic disorder In April 2011, service connection was granted for dysthymic disorder and a 30 percent rating was assigned effective November 12, 2010. The Veteran’s claim for an increased rating was received on June 17, 2013. In a March 2014 rating decision, the rating for dysthymic disorder was increased to 70 percent effective June 17, 2013. The Veteran seeks an earlier effective date for the 70 percent rating. Pursuant to the above referenced laws and regulations, the Board will look to see whether the evidence supports the assignment of a 70 percent rating during the one-year period prior to the increased rating claim, that is June 17, 2012. Upon review, the Board finds that an effective date of October 19, 2012 is warranted for a 70 percent rating for the Veteran’s dysthymic disorder. An October 19, 2012 medical treatment note reflected the Veteran was hospitalized due to road rage which rose to the level of suicidal and homicidal ideation. The Veteran was reported to have driven his car in a threatening manner and made suicidal and homicidal statements. See October 2012 Discharge Summary. The Veteran also endorsed having auditory hallucinations of someone calling his name. Id. The treating physician found the Veteran to have a potential for self-harm and ineffective coping skills. See October 2012 Psychosocial Assessment. The Board finds that this evidence supports the Veteran’s statements of a worsening of symptoms as of October 2012. Prior to October 2012 the Veteran did not endorse dysthymic disorder symptomatology sufficient to more nearly approximate a 70 percent disability rating. See June 2012 Mental Health Note (reflecting the Veteran was verbal with an officer but controlled himself to prevent from being arrested); July 2012 Mental Health Note (noting the Veteran was A/O x3 and did not have any suicidal ideation, homicidal ideation, or audio or visual hallucinations); September 2012 Mental Health Note (reflecting the came close to engaging in a conflict during road rage but was stopped). Accordingly, the Board finds that the Veteran’s symptoms increased in severity on October 19, 2012. Thus, an earlier effective date of October 19, 2012 is warranted for his increased rating of 70 percent for his dysthymic disorder. Entitlement to an effective date prior to June 17, 2013 for TDIU The grant of a TDIU is an award of increased disability compensation for the purposes of assigning an effective date. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). The claimant’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Certain percentage requirements must be satisfied in order to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Here, in the March 2014 rating decision, the RO granted entitlement to a TDIU effective June 17, 2013, based on the date the Veteran’s increased rating claim was filed. The decision was based on the results of VA examination in March 2013, specifically mental evaluation which showed that the Veteran’s dysthymic disorder created problems in adapting to stressful circumstances, including work or work-like settings. As explained above, the Board has determined that evidence dated October 19, 2012 supports the assignment of a 70 percent rating for dysthymic disorder. Resolving benefit of the doubt in the Veteran’s favor, the Board finds that such date is also reflective of when he met the criteria for entitlement to a TDIU. Increased Rating 1. Entitlement to an increased rating in excess of 70 percent for dysthymic disorder VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. The Veteran’s service-connected dysthymic disorder is currently evaluated as 70 percent disabling; however, he asserts it warrants a higher rating. Under the General Rating Formula, as pertinent to the present appeal, a 70 percent rating requires 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. The maximum 100 percent rating requires 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. Evaluating all the evidence of record, the Board finds that the frequency, severity, and duration of the Veteran’s reported dysthymic disorder symptomatology does not produce symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a 100 percent rating. The evidence reflects that the Veteran’s dysthymic disorder is productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Specifically, psychiatric and mental health treatment records during the appellate period, as well as the March 2014 VA psychiatric examination report, indicates, in particular, anxiety; depression; chronic insomnia; isolating behaviors; avoidance behaviors; blunted affect; hypervigilance; irritability; suicidal ideation; homicidal ideation, audio hallucinations; impaired impulse control and diminished social and occupational functioning. See, e.g., June 2012 Mental Health Note (noting the Veteran’s reports of anger), June 2012 Mental Health Note (reflecting the Veteran’s reports of anger, irritability, and self-isolation); September 2012 Mental Health Note (reporting the came close to engaging in conflict during road rage but was stopped); October 2012 Discharge Summary (stating the Veteran had been driving in a threating manner and had thoughts of suicidal ideation, homicidal ideation, audio hallucinations); October 2012 Mental Health Note(describing the Veteran as angry, irritable, and that he was isolating himself); March 2014 VA C&P Examination Report (reporting the Veteran has suicidal and homicidal ideations, depression, difficulty maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation); April 2015 Mental Health Note (reflecting he Veteran was kicked out of a hospital after going into a rage over a handicap parking spot); September 2015 Mental Health Note (noting the Veteran has difficulties controlling his anger, suffers nightmares, and has difficulties in crowds). The Veteran currently lives alone in a camper behind his parent’s house. See April 2015 Mental Health Note. The Veteran’s parents are also his main support. Id. The Veteran is divorced and has three children. See March 2014 VA C&P Examination Report. He enjoys fishing and occasionally hangs out with one friend. See August 2012 Mental Health Note (reflecting the Veteran goes out on weekend in a canoe with his friend); March 2014 VA C&P Examination Report. Based on the Veteran’s medical records, his thought processes and speech patterns and rhythm appeared appropriate. See June 2012 Mental Health Note; October 2012 Discharge Summary; September 2015 Mental Health Note. He reported experiencing hallucinations of someone calling his name as well as suicidal and homicidal ideation. See, October 2012 Psychosocial Assessment. He was alert and oriented to time, place, and person. See October 2012 Discharge Summary; April 2015 Mental Health Note; July 2015 Mental Health Note; September 2015 Mental Health Note. In addition, the Veteran’s hygiene and grooming was noted to be normal. See June 2012 Mental Health Note; July 2012 Mental Health Note; September 2012 Mental Health Note; March 2014 VA C&P Examination Report; September 2015 Mental Health Note. Although there have been some fluctuations in severity of the Veteran’s symptoms over the course of this appeal, the preponderance of the evidence shows that they have not met or approximated the criteria for a rating higher than 70 percent under the General Rating Formula at any point during the pendency of this claim, for the reasons explained above. See 38 C.F.R. § 4.126; Vazquez-Claudio, 713 F.3d at 117. In order to warrant a 100-percent rating, the Veteran’s dysthymic disorder symptoms must not only produce total occupational and social impairment, but must also be equivalent in severity, frequency, and duration to the symptoms corresponding to a 100 percent rating. See Vazquez-Claudio, 713 F.3d at 116-17. In other words, the Veteran’s symptoms in and of themselves must be equivalent in severity, frequency, and duration to the symptoms listed for a 100 percent rating in order for this evaluation to apply; they cannot be bootstrapped into such equivalency by means of the functional impairment they allegedly cause. See id. (rejecting the interpretation that symptoms corresponding to a 30 percent rating would warrant a 70 percent rating merely because it was found that they cause deficiencies in most areas). Here, the Veteran has not manifested any of the symptoms listed in the criteria for a 100 percent rating, and the symptoms he does have are not equivalent in severity, frequency, and duration so as to preclude social and occupational functioning. Not only is there an absence of any of the symptoms associated with a 100 percent rating, but the clinical findings consistently show that the Veteran’s thought processes and communication were normal; that he has been able to maintain normal personal hygiene standards; and that he was oriented times 3. See 38 C.F.R. § 4.130, DC 9433. See also June 2012 Mental Health Note; July 2012 Mental Health Note; September 2012 Mental Health Note; October 2012 Discharge Summary; March 2014 VA C&P Examination Report; April 2015 Mental Health Note; July 2015 Mental Health Note; September 2015 Mental Health Note. Further, while the Veteran did endorse hallucinations, suicidal ideation, and homicidal ideation, they did not reach the level of persistent to qualify for a 100 percent rating. See September 2012 Mental Health Note ( reflecting the Veteran does not have suicidal or homicidal ideation); October 2012 Discharge Summary (reporting that the Veteran no longer suffered from acute psychotic symptoms and denied suicidal and homicidal ideation); April 2015 Mental Health Note (reporting no suicidal or homicidal ideation); July 2015 Mental Health Note (reflecting the Veteran does not have any hallucinations); September 2015 Mental Health Note (reflecting the Veteran did not have suicidal ideation, homicidal ideation, or hallucinations). See 38 C.F.R. § 4.130, DC 9433. Moreover, he has been noted to be generally self-sufficient, independently functioning, cooperative, and exhibiting normal communication by VA examiners and health care providers. See 38 C.F.R. § 4.130. Accordingly, the criteria for a 100 percent rating have not been satisfied or approximated during the pendency of this claim. See id. JOHN Z JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel