Citation Nr: 18147347 Decision Date: 11/06/18 Archive Date: 11/02/18 DOCKET NO. 16-03 311 DATE: November 6, 2018 ORDER For the entire appeal period prior to September 10, 2013, an initial rating of 70 percent for major depression and anxiety disorder not otherwise specified is granted. A total disability rating based on individual unemployability due to service-connected disability is granted.   FINDINGS OF FACT 1. For the entire appeal period stemming from the Veteran’s August 30, 2004, claim to September 10, 2013, his major depression and anxiety disorder not otherwise specified was manifested by occupational and social impairment with deficiencies in most areas due to his psychiatric symptomatology, without more severe manifestations that more nearly approximated total occupational and social impairment. 2. Resolving all doubt in the Veteran’s favor, his service-connected disability renders him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the entire appeal period prior to September 10, 2013, the criteria for a rating of 70 percent for major depression and anxiety disorder not otherwise specified, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2017). 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1972 to August 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in June 2014 by a Department of Veterans Affairs (VA) Regional Office. In March 2014, the Veteran submitted a formal claim for a TDIU. Although the AOJ has not adjudicated the claim, the Board has assumed jurisdiction over the issue as part and parcel of the Veteran’s rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a January 2016 statement, the Veteran’s attorney characterized the increased rating issue on appeal as entitlement to an earlier effective date for the total (100 percent) rating for the acquired psychiatric disorder prior to September 2013. Generally, a claim for an earlier effective date for the award of a particular disability rating is a distinct issue appealable to the Board. See, e.g., Hazan v. Gober, 10 Vet. App. 511 (1997). Here, however, the Veteran’s appeal ultimately arises from the rating decision granting service connection for the disability. The issue concerning the effective date for the 100 percent rating is subsumed by the appeal of the claim for an increased disability rating because in looking at the record to determine if higher ratings are warranted prior to September 2013, the Board will necessarily be adjudicating the earlier effective date issue. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). As such, no further action is needed as the earlier effective date issue. In January 2016, the Veteran’s representative submitted additional evidence with a waiver of AOJ consideration of such. 38 C.F.R. § 20.1304(c) (2017). Therefore, the Board may properly consider the entirety of the evidence of record. 1. Entitlement to a rating in excess of 50 percent for major depression and anxiety disorder not otherwise specified (psychiatric disability) prior to July 3, 2007, and in excess of 70 percent from July 3, 2007, to September 10, 2013 The Veteran’s psychiatric disability is currently evaluated as 50 percent disabling from August 30, 2004, to July 3, 2007, 70 percent disabling from July 3, 2007, to September 10, 2013, and 100 percent disabling thereafter. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 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 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s disability is evaluated under the criteria of Diagnostic Code 9413, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating). See 38 C.F.R. § 4.130. As of September 10, 2013, the Veteran is currently in receipt of the maximum rating under the General Rating for his service-connected psychiatric disability, and therefore, the Board will not address such period herein. Under the General Rating, a 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code 9413. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation 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). The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (August 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. B. Discussion VA treatment records dated in April 2003 indicate the Veteran had mild to moderate depression without psychotic symptoms or suicidal or homicidal ideation. In August 2004, he reported irritability, nightmares, hypervigilance, hyperarousal, avoidance, depression most of the time, decreased interest, and hopelessness. A March 2005 VA treatment record reflects symptoms of frightening dreams, hallucinations, and agitation, without suicidal or homicidal ideation. On VA examination in June 2005, the Veteran was neatly groomed, not tangential, and oriented, without current hallucinations, delusions, or psychosis. He reported a history of the latter symptoms, to include frequent panic attacks. He also complained of current nightmares, intrusive memories, flashbacks, startle, and hypervigilance. He was very isolated, depressed, and anxious, with fair judgment, poor insight, and very poor coping skills. Notably, the VA examiner found the Veteran had serious, current psychiatric problems. VA treatment records in July 2007 indicate the Veteran was briefly hospitalized for his reported depression. In September 2007, the Veteran complained of increased anxiety, insomnia, constant hypervigilance, and social isolation, without active suicidal ideation. The Veteran’s wife stated his symptoms improved with rest and relaxation. In February 2008, although a VA physician found the Veteran’s psychiatric symptomatology were remarkably disabling for him, he was at low risk for self/other harm and could be appropriately managed as an outpatient. In a September 2013 psychological report, a private physician found testing showed a severely distressed individual with collapsed defense mechanisms. The Veteran had reported sleep difficulties, difficulties in concentration, anger, irritability, fatigue, social isolation, low self-esteem, lack of self-confidence, and suicidal ideation. He had continued hypervigilance that was a part of his continuing anxiety and distrust of his social and physical environment. The private physician opined that, in accordance with the VA rating criteria, the Veteran’s “percentage of disability” was at 70 percent since 1975. The private physician based the opinion on the Veteran’s inability to sustain any consistent form of employability and his increased depression and anxiety. In addition, the Veteran’s anger and depressive reaction impacted his ability to concentrate and complete complex tasks and severely impaired his thinking and judgment. The Veteran avoided any social or occupational contact and had shown a severely impaired ability to adapt to even the most common stresses of normal life. Further, the Veteran was totally isolated from others, with episodic conflict with his spouse, no friends, and no social activities. He also did not have much of a relationship with his family. Here, the Board finds the September 2013 psychological report, with consideration of the Veteran’s reported symptoms of depression, sleep difficulties, difficulties in concentration, anger, irritability, fatigue, social isolation, low self-esteem, hypervigilance, and suicidal ideation, reflect occupational and social impairment with deficiencies in most areas prior to September 10, 2013. The Board finds pertinent the September 2013 physician’s opinion that the Veteran’s symptoms were continuous since 1975. In addition, the medical evidence and the Veteran’s lay statements indicate his psychiatric symptoms affected areas of work, family relations, and mood, as the Veteran had difficulty maintaining employment, was socially isolated, and felt depressed most of the time. Further, multiple VA physicians found the Veteran had severe psychiatric symptoms that severely impacted his functioning throughout such period. Therefore, the Board finds a 70 percent rating is warranted based on the Veteran’s psychiatric symptomatology prior to September 10, 2013, the date of the assignment of a 100 percent rating. A 100 percent rating is not warranted prior to September 10, 2013, as the evidence does not reflect symptomatology of such severity. Concerning this finding, the Board has engaged in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of the Veteran’s psychiatric disability and their resulting social and occupational impairment. Here, despite reports of difficulties over the years, the Veteran has been married for over 40 years. In addition, the May 2005 VA examination report indicates the Veteran was trying to reconcile with his mother, and additional treatment records show the Veteran liked to take his dog for a walk outside the home. Further, as noted above, “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” See Vazquez-Claudio, 713 F.3d at 116-117. Prior to September 10, 2013, the evidence does not demonstrate gross impairment in communication, persistent delusions or hallucinations, or grossly inappropriate behavior. Although the Veteran reported isolation because he feared that he might hurt others, he had only intermittent suicidal ideation and hallucinations and often denied such during the appeal period. Moreover, the finding of occupational and social impairment with deficiencies in most areas contemplates the Veteran’s reports of a history of intermittent suicidal ideation. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In addition, neither the evidence nor the Veteran’s lay statements show an intermittent ability to perform activities of daily living, disorientation to time or place, or memory loss for names of closest relatives, own occupation, or own name. In conclusion, the Board has considered the applicability of the benefit of the doubt doctrine and finds a rating of 70 percent, but no higher, for psychiatric disability is warranted for the entire appeal period prior to September 10, 2013. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU The Veteran asserts that his service-connected disabilities have prevented him from securing and following a substantially gainful occupation. He reports that he last worked full-time in January 1999 and became too disabled to work in January 1994, although he did have some periods of employment thereafter. He reports an occupational history of multiple jobs, many of which were in the field of construction, driving trucks, or making jewelry. Initially, as the Veteran’s claim for a TDIU is considered part and parcel of his claim for a psychiatric disability, the effective date of any TDIU award cannot pre-date the grant of service connection for this disability. A. Applicable Law Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and 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). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). B. Discussion In the instant case, the Veteran is service-connected for major depression and anxiety disorder not otherwise specified, which, with the award granted herein, is currently rated as 70 percent disabling prior to September 10, 2013, and 100 percent thereafter. As a result, the Veteran meets the schedular threshold for consideration of a TDIU throughout the appeal period. In a written statement submitted with his March 2014 formal claim for a TDIU, the Veteran reported that since 1996 he had found it exceedingly difficult to work because it was hard for him to establish relationships with other individuals. He also could not respect those of higher authority, and he had extreme difficulty following instructions due to poor concentration and memory issues. He found his unstable state of mind was not conducive for work and that he was constantly pre-occupied with intrusive thoughts. The May 2005 VA examination report indicates the Veteran had never been able to “really work well.” He had problems relating to other people, with supervision, and with anger management. The VA examiner found the Veteran evidenced severe difficulty in employment and moved to various jobs while employed. The September 2013 psychological report also shows the private physician’s finding that the Veteran had been “totally and permanently unable to sustain any form of remunerable activity over a significant period of time since 2005.” Specifically, the private physician based the opinion on the Veteran’s reports of rejection for employment due to anger and conflict with supervisors, difficulty in concentration, fatigue, lack of self-confidence, and disturbed social relationships. Furthermore, the September 2013 VA examiner found the Veteran’s service-connected psychiatric disability resulted in total occupational and social impairment at the time of the examination. 38 C.F.R. § 4.16(a). Consequently, considering the medical evidence of record, the Veteran’s occupational history, and the nature of the limitations of his service-connected disability, the Board resolves all doubt in his favor and finds that his service-connected psychiatric disability renders him unable to secure or follow a substantially gainful occupation. Therefore, a TDIU is warranted. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. M. Celli, Counsel