Citation Nr: 18149293 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 09-18 456 DATE: November 9, 2018 ORDER The appeal pertaining to the issue of entitlement to a total disability rating based on individual unemployability (TDIU) effective January 5, 2006, is dismissed. A rating in excess of 70 percent, effective January 5, 2006, for disability due to an undiagnosed illness manifested by sleep disturbance/insomnia, fatigue, memory impairment and impaired concentration (undiagnosed illness manifested by psychiatric symptomatology) is denied. FINDINGS OF FACT 1. In an August 2018 rating decision, a TDIU was granted, effective January 5, 2006, resulting in a full grant of the benefit sought on appeal. 2. For the period on appeal, the Veteran’s disability due to an undiagnosed illness manifested by sleep disturbance/insomnia, fatigue, memory impairment and impaired concentration (undiagnosed illness manifested by psychiatric symptomatology) was manifested by occupational and social impairment, with deficiencies in most areas, such as work school, family relations, judgment, thinking or mood; total occupational and social impairment has not been shown. CONCLUSIONS OF LAW 1. The claim of entitlement to a TDIU is moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. 2. The criteria for an increased rating in excess of 70 percent for disability due to an undiagnosed illness manifested by sleep disturbance/insomnia, fatigue, memory impairment and impaired concentration (undiagnosed illness manifested by psychiatric symptomatology) have not been met. 38 U.S.C. § 1110, 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1974 to August 1995. These matters return to the Board of Veterans Appeals (Board) from an August 2016 Order by the Court of Appeals of Veterans Claims (Court) which endorsed the findings of a Joint Motion for Remand, vacating an August 2015 decision by the Board that had denied the claim for higher ratings for disability due to undiagnosed illness manifested by psychiatric symptomatology, and remanded for compliance with the Joint Motion. The matters originally came to Board on appeal of a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge sitting at the RO in September 2009 and a transcript of the hearing is of record. In March 2011, the matters were remanded by the Board for additional development, to include VA examinations. By the way of a May 2012 rating decision granted an increased rating of 30 percent for sleep disturbance, effective on April 27, 2011. Thereafter, the matters returned to the Board for adjudication, the Board found it was more appropriate to rate the Veteran’s disability due to undiagnosed illness under a single rating as opposed to two separation ratings under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Board’s August 2015 decision increased the assigned evaluation to 30 percent disabling, and not higher, for the period prior to June 7, 2011, and thereafter, an evaluation of 50 percent, and not higher, for disability due to undiagnosed illness manifested by psychiatric symptomatology. The Veteran appealed the denial of a higher evaluation for his disability, giving rise to the Joint Motion and Court Order that have returned the matter to the Board. Also in August 2015, the Board found that the claim for entitlement to TDIU had been raised by the record and was considered part of the Veteran’s increased rating claims on appeal, and remanded the matter to provide the Veteran with appropriate notice and additional development. The appeal was again remanded in December 2016. In an August 2018 rating decision, the RO increased the Veteran’s rating for an undiagnosed illness manifested by sleep disturbance/insomnia, fatigue, memory impairment and impaired concentration (undiagnosed illness manifested by psychiatric symptomatology) to 70 percent, effective January 5, 2006. The issues of entitlement to an effective date prior to April 27, 2011, for the grant of increased evaluations for service-connected sleep disturbance, keloid scars, and atrophic gastritis have been raised by the record by the Veteran’s representative in statements dated in August 2012 and July 2014, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b). TDIU Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. In an August 2018 rating decision, subsequent to a Board remand, a TDIU was granted, effective January 5, 2006, the date the relevant appeal period began, resulting in a full grant of the benefit sought on appeal. As such, the issue is no longer in appellate status, and there is no case or controversy presently before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Therefore, the appeal seeking entitlement to a TDIU must be dismissed. Increased Rating The Veteran seeks a rating in excess of 70 percent for his service-connected undiagnosed illness manifested by sleep disturbance/insomnia, fatigue, memory impairment and impaired concentration (undiagnosed illness manifested by psychiatric symptomatology). The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following: A 70 percent rating is warranted for 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. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought process 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.” The GAF score assigned in a case, like an examiner’s assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran’s disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126 (a). VA has recently changed its regulations, and now requires use of DSM-5 effective August 4, 2014. Among the changes, DSM-5 eliminates the use of the GAF score in evaluation of psychiatric disorders. The change was made applicable to cases certified to the Board on or after August 4, 2014; and is not applicable to cases certified to the Board prior to that date. 79 Fed. Reg. 45093 (Aug. 4, 2014). As the Veteran’s case was certified to the Board prior to August 4, 2014, DSM-IV applies, and GAF scores are included in the evaluation of the Veteran’s psychiatric disorder. Id. The Veteran was provided a VA psychiatric evaluation in December 2007, which was noted to be the first VA compensation and pension evaluation since 1998. He said that he had not worked in over seven years. He stopped working in telecommunications because of frustration with coworkers. He was able to maintain all activities of daily living without assistance. He reported symptoms of anxiety. His sleep pattern involved falling asleep fairly easily, but waking after 4-5 hours of sleep and staying up for at least 2-3 hours before falling back to sleep for another 3-4 hours. He was often fatigued. It was noted that neuropsychological testing in June 2007 showed mild cognitive deficits. On mental status examination, the Veteran was fully oriented. His cognition appeared intact and his insight and judgment were fair. A generalized anxiety disorder was diagnosed, and the GAF score was 65. The examiner noted that the Veteran had symptoms of generalized anxiety, sleep disturbance, fatigue, memory impairment, and poor concentration, which had not changed since the prior evaluation in 1998. The Veteran testified at his Travel Board hearing in September 2009 that his problems included anxiety, panic attacks, memory impairment, and insomnia, which caused fatigue. An April 2009 assessment from a VA social worker reflects that the Veteran reported anxiety, experiencing excessive worry, feeling on edge, tension and night terrors. He described his sleep as intermittent. Suicidal/homicidal ideation and hallucinations were denied. He reported living alone, with some contact with his adult children, and that he had little contact with his family of origin and no close circle of friends. He reported a history of a variety of jobs and that he would quit when he could not tolerate the interactions with others. He was on time for his visit and was fully alert and oriented. His affect was full and his mood was anxious and agitated. He was noted to be articulate, responsive and cooperative and his responses were logical and appropriate. Speech rate and rhythm were a bit loud and accelerated; however, he did not appear manic, and he became calmer and more settled as the session progressed. Thought disorder, hallucinations or sensory deficits were absent. He was well dressed and groomed. He was diagnosed with anxiety disorder and assessed with a GAF score of 50. When examined by VA in June 2011, the Veteran complained of anxiety, attention disturbance, sleep impairment, panic attacks, suicidal thoughts, and problems with daily living. It was noted that his thought process was rambling. His remote and recent memory were normal but his immediate memory was severely impaired, as he was frequently tangential and had difficulty remembering questions during the interview. He said that he was unable to work due to the severity of his anxiety disorder. The diagnoses were generalized anxiety disorder and cognitive disorder, NOS. The examiner noted that the Veteran’s heightened level of anxiety, panic attacks, impaired concentration, and sleep difficulties were associated with his anxiety disorder while his cognitive deficiencies and memory impairment were due to his cognitive disorder. His GAF score was 55. It was noted that the Veteran had not worked since 1999 and that there was total occupational and social impairment due to mental disorder. A December 2014 VA mental health treatment note documents that the Veteran arrived appropriately groomed and casually, but neatly, dressed. He was oriented times four. He stated he was anxious and frustrated, and his affect was consistent with his mood. His psychomotor activity was agitated. Thought process was somewhat circumstantial, but the Veteran was able to stay on track with some redirection. He denied visual hallucinations but possible auditory hallucinations/external voices were noted; though the Veteran was clear that he did not have command hallucinations. Insight and judgment were limited. He denied suicidal/homicidal ideation, but he reported that in April he had pointed a gun at his cousin when he felt verbally threatened. He stated that he prepares his own food, washes his own clothes and drives himself. Insomnia, worry, frustration, impaired short-term memory and physiological anxiety and possible panic attacks were noted. Generalized anxiety disorder was diagnosed. The Veteran underwent another VA psychiatric examination in March 2017. He arrived unaccompanied and adhered to civilian social conventions. His grooming was adequate and he was appropriately dressed for the interview and climate. He related to the examiner with ease in an open and candid manner after rapport was developed. He reported that he had been isolating himself and that he was irritable and did not have a good relationship with other people. He reported night sweats, nightmares and anxiety attacks. Upon evaluation, his speech was clear, audible, logical and goal directed. His eye contact was good. There were no bizarre or unusual gestures or mannerisms. Affect was observed to be anxious with limited range of affect. Affective responses were mood content congruent. There was not any evidence of hallucinations, delusions, loose associations or flight of ideas (though the Veteran reported feeling like “stuff is crawling on me and flying around me sometimes”). He denied any current thoughts of harming himself, others, or property. He was oriented to time, place, person, and purpose. The quality of the Veteran’s thinking and abstract-conceptual thinking were adequate. His memory functions were not rendered impaired and his mental control was adequate. Insight and judgement were adequate. Depressed mood, anxiety, panic attacks occurring weekly or less often, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks, flattened affect, circumstantial, circumlocutory or stereotyped speech, difficulty in understanding complex commands, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships were noted. The examiner diagnosed the Veteran with other specified trauma and stressor related disorder and unspecified depression with anxious distress, and stated that it was not possible to differentiate which symptoms are attributable to each diagnosis, explaining that they were co-morbid diagnoses with overlapping symptoms, but that some specific symptoms including re-experiencing/flashbacks and nightmares are more specific to posttraumatic stress disorder. He summarized the Veteran’s level of impairment as occupational and social impairment with reduced reliability and productivity. Based on the above, the Board finds that a rating in excess of 70 percent is not warranted. In particular, the evidence does not suggest that the Veteran suffered 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, or that his memory impairment was so severe that he forgot the names of close relatives or his own occupation or name. While he reported suicidal ideation to the June 2011 examiner, and reported pointing a gun at his cousin to the December 2014 examiner, self-harm/harm to others were not noted during the other evaluations, suggesting that such is not a pervasive symptom for the Veteran. Similarly, while hallucinations were potentially endorsed during the December 2014 and March 2017 examinations, the record does not establish that such are pervasive. Lastly, there is no evidence of other symptomatology of similar frequency or severity as the symptoms contemplated by a 100 percent rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002); Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Additionally, the Board notes that GAF scores reported throughout the appeal period have ranged from 50-65, which is reflective of mild to moderate symptomatology. The Board has carefully reviewed and considered the Veteran’s statements regarding his claim. The Board also acknowledges that the Veteran, in advancing this appeal, believes in the merits of this appeal. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the competent medical evidence offering detailed specific specialized determinations pertinent to the claim are the most probative evidence with regard to evaluating the disability on appeal.   As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the Veteran’s claim must be denied. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.Z., Counsel