Citation Nr: 18149234 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-44 751 D`ATE: November 9, 2018 ORDER Entitlement to a disability rating in excess of 50 percent for anxiety disorder and specific acrophobia associated with mild traumatic brain injury (TBI) claimed with memory loss (psychiatric disorder) is denied. REMANDED Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s psychiatric disorder manifests as occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for a psychiatric disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to September 1979 and June 1984 to March 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from April 2012 and December 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran initially requested a Board hearing, but subsequently withdrew his hearing request in October 2018. Higher Rating for a Psychiatric Disorder 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 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). Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran’s psychiatric disorder is currently rated as 50 percent disabling under DC 9413. 38 C.F.R. § 4.130. He asserts that his psychiatric symptoms more closely resemble the criteria for a 70 percent disability rating. Pursuant to DC 9413, a 50 percent evaluation 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. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; 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 close relatives, own occupation, or own name. Id. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. According to the applicable rating criteria, 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. Id. Further, 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). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). The amendments replace those references with references to the more recently issued fifth edition of the DSM (DSM-5). Under the DSM-5 criteria, clinicians do not typically assess Global Assessment of Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity and questionable psychometrics in routine practice. As the Veteran’s appeal was certified after August 4, 2014, GAF scores will not be discussed in the analysis below. In November 2010, the Veteran underwent a VA examination in which he reported close and supportive relationships with his family, including his significant other and their children, but little contact with friends. On mental health examination, the veteran was clean and casually dressed. He was fatigued and tense. Speech was spontaneous and clear. He was cooperative but exhibited an anxious, dysphoric mood and constricted affect. Attention was easily distracted and short. He was oriented and described an intense fear of heights, as well as panic symptoms when exposed to situations involving heights. No delusions or hallucinations were noted, however he reported frequent problems with sleep, including nightmares. He reported anger control problems. He had good impulse control, but denied suicidal, homicidal, or violent ideation. Memory was mildly to moderately impaired, which he attributed to his head injury. He was deemed as capable of managing financial affairs. The examiner opined that the Veteran did not have total occupational and social impairment, but had deficiencies in thinking, work, and mood due to his symptoms of anxiety. The examiner diagnosed acrophobia, anxiety disorder, not otherwise specified (NOS), and cognitive disorder (NOS). During a September 2015 VA examination, the Veteran was diagnosed with unspecified anxiety disorder and TBI. The Veteran reported no difficulty with daily activities. He stated he avoids crowds, but had a friend from military service. He denied having received any mental health treatment. On mental status examination, the Veteran was casually dressed, with good hygiene. He was fully oriented and cooperative. Affect appeared euthymic and congruent with reported mood. Thought processes appeared well organized, as evidenced by clear, coherent speech. No evidence of psychosis was noted and he denied suicidal or homicidal ideation, intent, or plan. He denied experiencing depressed mood, but reported mild, intermittent anxiety when going to the store approximately twice a month, which the examiner noted did not cause any significant impairment. He could not identify why he felt anxious around others, but reported he preferred living in the country. He reported receiving adequate sleep at night and denied experiencing anger/irritability. The examiner reported there was no objective evidence of a mental disorder diagnosis to support any level of social or occupational impairment. Based on the probative medical evidence, the Board finds that a rating in excess of 50 percent under DC 9413 is not warranted because the probative evidence of record does not show that his symptoms are of the frequency, severity, or duration to result in social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Although the November 2010 VA examiner surmised that the Veteran’s psychiatric symptoms caused deficiencies in thinking, work, and mood, his symptoms do not warrant a 70 percent disability rating under DC 9413. The evidence of record shows that the Veteran has a friend and a good relationship with his family. He was cooperative on examinations with spontaneous, clear, and coherent speech. He has denied suicidal ideation. Although he has reported anger issues, he has good impulse control. There is no evidence of violence exhibited or reported by the Veteran. He reported experiencing panic attacks only in situations pertaining to heights. There is no evidence of neglect of personal appearance and hygiene. Although he has reported difficulty adapting to work environments due to anxiety and his acrophobia, his psychiatric disorder did not result in symptoms that caused impairment in judgement as of September 2015. Furthermore, he was unable to determine his motive for leaving at least one of his jobs. He has anxiety with situations dealing with heights and going to the store twice a month. However, simply because the Veteran has anxiety does not indicate his anxiety rises to the criteria of a 70 percent disability rating. The Board, instead, must look to the frequency, severity, and duration of the impairment. Here, the Veteran’s anxiety, by his own reports, is mild and intermittent. The Board notes that the Veteran has shown some memory loss during his November 2010 VA examination, however he reported no such concerns in his September 2015 VA examination. In addition, the September 2015 VA examiner noted there was no objective evidence of a mental disorder diagnosis to support any level of social or occupational impairment due to the Veteran’s psychiatric symptoms. This assessment is supported by the lack of mental health treatment sought by the Veteran during the appeal period. Thus, the criteria for a 70 percent rating are not met. To the extent that the Board finds a higher rating is not warranted, the preponderance of the evidence is against the Veteran’s claim, and the benefit of the doubt rule does not apply. REASONS FOR REMAND TDIU The Veteran contends that the combined effects of his service-connected disabilities make him unable to maintain a substantially gainful occupation. In his TDIU claim form, dated March 2016, he asserted that he was unemployable due to the combined effects of all of those disabilities. In the present decision, above, the Board has denied an increase above 50 percent rating for his psychiatric disorder. His other service-connected disabilities are degenerative joint disease (DJD) of the right shoulder, currently rated 20 percent; cervical spine degenerative disc disease (DDD), lumbar spine DDD, vertigo, and mild TBI, each rated 10 percent; and, shin splints of both legs, each rated as noncompensable. While a series of VA examinations in September 2015 addressed the effects of the Veteran’s service-connected lumbar spine, cervical spine, right shoulder, and psychiatric disorders on his capacity for employment, the record does not contain recent evidence regarding the current effects of his other disabilities on his capacity for employment. The Board therefore is remanding the TDIU issue for new examinations to determine the current effects of his vertigo, bilateral shin splints, and mild TBI on his capacity to secure and follow a substantially gainful occupation. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) to determine the current manifestations of his vertigo, bilateral shin splints, and mild TBI, and the effects of each of those disorders, together with his other service connected disabilities, on his employment capacity. Ask the examiner(s) to describe the expected effects of the combination with all service connected disabilities, on his ability to perform occupational tasks, his endurance for a typical work schedule, his capacity for regular work   attendance, and his capacity to secure and follow a substantially gainful occupation. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel