Citation Nr: 18153698 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 14-23 784 DATE: November 28, 2018 ORDER Entitlement to a disability rating in excess of 50 percent prior to July 14, 2014, for the service-connected anxiety disorder is denied. Entitlement to a 70 percent disability rating from July 14, 2014, for service-connected anxiety disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating by reason of individual unemployability (TDIU) effective September 2015 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. For the period prior to July 14, 2014 the Veteran’s service-connected anxiety disorder manifested by occupational and social impairment with reduced reliability and productivity, and difficulty in establishing and maintaining effective relationships. 2. For the period beginning July 14, 2014 the Veteran’s service-connected anxiety disorder manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and inability to establish and maintain effective relationships 3. As of September 2015, the Veteran is precluded from securing or following a substantially gainful occupation due to his service-connected disabilities, primarily service-connected anxiety disorder. CONCLUSIONS OF LAW 1. For the period prior to July 14, 2014, the criteria for a rating in excess of 50 percent for the Veteran’s service-connected anxiety disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413. 2. Beginning July 14, 2014, the criteria for a 70 percent disability rating, but no higher, are met for the Veteran’s service-connected anxiety disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, DC 9413. 3. As of September 2015, the criteria for a TDIU rating have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1959 to January 1962 in the United States Air Force. These matters were previously before the Board in October 2017. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC) and a Joint Motion for Remand (JMR) was granted in June 2018 vacating the Board’s decision and remanding for further development. 1. Entitlement to a disability rating of 50 percent prior to July 2014 for the service-connected anxiety disorder is denied. A 70 percent rating for the period thereafter is granted. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the factual circumstances) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In the Board’s November 2017 decision, the Veteran’s acquired psychiatric disability was increased to 50 percent disabling for the entire period on appeal under 38 C.F.R. § 4.130, DC 9413. Under the General Rating Formula for Mental Disorders, to include anxiety disorder, a 50 percent rating is warranted when a mental disability results in occupational and social impairment with reduced reliability and productivity due to symptoms such 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. 38 C.F.R. § 4.130, DC 9413. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 warranted where 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 daily activities of daily living (including maintenance of minimal personal hygiene); and disorientation of time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). The Veteran’s post-service VA treatment records reflect ongoing and persistent psychiatric treatment beginning as early as February 2004, to include persistent symptoms such as sleep disturbance with related fatigue, nightmares and intrusive thoughts regarding military trauma, agitation, irritability, depressed and/or erratic mood, mildly impaired memory (forgetfulness), and diminished interest. May 2004 and April 2006 VA treatment records reflect symptoms of severe depression confirmed by psychological testing. The Veteran’s 2008 VA treatment records reflect a consistency in these noted symptoms. The VA treatment records during this time also reflect numerous psychiatric medications that the Veteran was prescribed. Treatment records between January 2009 through 2011 reflect consistent psychiatric symptoms. In March 2011 the Veteran’s spouse submitted a statement indicating that the Veteran’s persistent nightmares had made it increasingly difficult to share a bed. Private physician Dr. SM offered a March 2011 opinion stating that the Veteran’s service-connected anxiety disorder manifested with symptoms of extreme difficulty adapting to stressful situations, and difficulty establishing and maintaining effective work relationships, preventing the Veteran from obtaining or maintaining any employment. In June 2011 the Veteran underwent a VA examination. The Veteran reported that he sleeps approximately five hours a night due to the ongoing night terrors with related fatigue and impairment in concentration, as well as excessive worry, and increased anxiety around other people. The Veteran described the impact of these symptoms as causing difficulties in his marital relationship. The examiner’s objective findings indicated unremarkable speech and psychomotor activity, a constricted affect and a dysphoric mood, and the Veteran’s recent memory to be mildly impaired. The examiner ultimately opined that the Veteran had occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks due to psychiatric symptoms, but with generally satisfactory functioning. A private physician, Dr. DM, opined in June 2012 in pertinent part, that the Veteran’s anxiety results in difficulty in establishing and maintaining effective work and social relationships. A different private physician, Dr. DT, opined in August 2012 in pertinent part, a history of anxiety resulting in difficulties communicating and emotionally connecting with his spouse. She noted the Veteran has similar difficulties in his relationships with others. Despite the treatment (including medication and therapy), the Veteran continues to struggle with irritability and anxiety. In July 2014 the Veteran underwent a VA examination. The Veteran reported that symptoms of anxiety, difficulty concentrating, persistent nightmares, depressed mood, and irritability that has affected his relationship with his wife. The Veteran also mentioned vague thoughts of suicide (without intent or plan) attributed to feeling hopeless. The examiner’s objective conclusions noted that the Veteran perceived an increase in the severity of his symptoms, however the examiner cited the Veteran’s treatment records as not supporting a significant decline in functioning. The examiner opined that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational task during periods of significant stress, or; symptoms controlled by medication. In September 2015 the Veteran submitted a statement reporting that he was seeking therapy to help alleviate his psychiatric symptoms; however, he indicated therapy has been minimally successful. At that time, he reported persistent symptoms of difficulty concentrating, erratic mood, forgetfulness, and sleep disturbance. He also noted frequent panic attacks, which exacerbate his depression. He further reported a deteriorating relationship with his spouse due to his psychiatric symptoms. Also in September 2015, a private physician, Dr. SL, stated that she has treated the Veteran for his psychiatric symptoms for a decade. She opined that it is at least as likely as not that the Veteran’s psychiatric disability prevents him from securing gainful employment. She reported that the Veteran has extreme difficulty adapting to stressful circumstances, and that he has difficulty establishing and maintaining effective work and social relationships. In October 2015 a private physician Dr. I-WS, the Veteran’s primary psychiatrist since March 2014, opined that the Veteran’s psychiatric symptoms are associated with severe personal and professional impairment, including the inability to obtain and follow substantially gainful employment. In November 2015 a private physician Dr. RF opined that the Veteran’s psychiatric symptoms (such as memory impairment, difficulty concentrating, and persistent anxiety) result in significant impairment in social and occupational areas of daily functioning. The Veteran underwent a VA examination in July 2016. The Veteran described symptoms of persistent anxiety, difficulty concentrating, mild memory impairment, and sleep disturbance due to nightmares, which further exacerbate his depression. The Veteran also reported sporadic suicidal ideations in relation to his marital discords. Based on the Veteran’s statements, the examiner also noted an apparent disturbance of motivation. The VA examiner characterized the severity of these symptoms, compared to the 2014 VA examination, as mild-moderate. The examiner opined that the Veteran had an occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks due to psychiatric symptoms. In December 2016 the Veteran underwent a private psychiatric evaluation that identified ongoing symptoms of persistent nightmares resulting in sleep disturbance, daytime fatigue, and difficulty concentrating. Veteran further reported impaired memory and irritability to the detriment of social, i.e., marital, relationship. The examiner stated the Veteran’s medical treatment records include multiple references to severe psychiatric symptomatology. The examiner noted that despite being compliant with treatment recommendations, the Veteran has persistently remained symptomatic. The examiner further suggested that the VA examiners determination of mild impairment appears to be based on the Veteran’s reports of reduced symptoms due to medication and psychotherapy, whereas the treating physician opinions account for such treatment. The examiner opined that the Veteran’s psychiatric symptoms result in significant occupational and social impairment with deficiencies in most areas. The Veteran underwent a VA examination in August 2017. The Veteran stated that he experienced persistent anxiety, chronic depression, sleep disturbance due to nightmares with related fatigue, difficulty concentrating, mild memory impairment, and difficulty maintaining relationships, i.e., marital. The Veteran also reported that his psychiatric symptoms affect his relationship, which in turn exacerbates his symptoms. Finally, the Veteran reported compliance with medication, and that he receives counseling 1-2 times per month. The examiner characterized the Veteran’s psychiatric disorder at a moderate level of severity. Based on a review of the evidence of record the Board finds that prior to July 2014, the criteria for a rating in excess of 50 percent are not met or more closely approximated. From July 2014, the criteria for a 70 percent, but no higher, are met. For the period prior to July 14, 2014 the Veteran’s anxiety disorder symptoms manifested primarily with symptoms of decreased motivation and mood, persistent anxiety, chronic sleep disturbance due to nightmares with related fatigue, irritability and agitation, difficulty concentrating, mild memory impairment, and difficulty maintaining effective relationships. Especially probative are the multiple opinions by the Veteran’s treating private physicians characterizing the impact of these symptoms as causing difficulties in maintaining his personal relationships and developing any effective work relationships. However, for this initial period the Veteran does not demonstrate symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene. Furthermore, the symptoms the Veteran does demonstrate do not collectively result in an inability of the Veteran to maintain and establish social and occupational relationships as demonstrated by the competent medical opinions of record. The Board finds that the Veteran’s July 2014 VA examination represents a marked increase in his acquired psychiatric disability symptoms. The VA examiner noted that the Veteran reported an increase of severity and frequency in his symptoms. These symptoms included frequent panic attacks, chronic depression, impaired concentration, persistent nightmares causing sleep disturbances, disturbances of motivation, sporadic suicidal ideations, impaired memory, and irritability. The Board notes that there is a disparity in the reported severity and impact of these symptoms in the opinions of the VA examiners and private physicians. The Board finds that the private opinions to be more probative as they are provided by physicians that have treated the Veteran throughout the course of this disability on a regular basis. The private examiner’s during the period following July 14, 2014 categorized the impact of these symptoms as severe, causing extreme difficulties, significant impairments, and an inability to maintain and establish occupational and social relationships. The Board finds that these findings more closely approximate a 70 percent disability rating for the period beginning July 14, 2014. At no time during the period on appeal has the Veteran’s anxiety disorder manifested to a degree demonstrating 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 daily activities of daily living (including maintenance of minimal personal hygiene); and disorientation of time or place; memory loss for names of close relatives, own occupation, or own name. 2. Entitlement to a TDIU effective September 2015 is granted. Under the applicable criteria, total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran is not required to show 100 percent unemployability; rather, the question is whether he or she is unable to pursue a substantially gainful occupation. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Further, the question is not whether the Veteran can find employment, but “whether the veteran is capable of performing the physical and mental acts required by employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). The Veteran has been granted service connection for an acquired psychiatric disability (rated as 50 percent from June 22, 2004 to July 14, 2014 and 70 percent thereafter), Hashimoto’s disease (rated as 10 percent from June 22, 2004; increased to 30 percent from June 14, 2005), non-epileptic seizure disorder (rated as 10 percent from June 22, 2004), residual burn scars, right forearm (rated as noncompensable from June 22, 2004), and thyroidectomy scar associated with Hashimoto’s disease (rated as noncompensable from November 14, 2007). The Veteran’s combined rating for service-connected disabilities is 60 percent prior to June 14, 2005, and 70 percent thereafter. 38 C.F.R. § 4.25. In a previous decision the Board determined that the Veteran was not entitled to TDIU on an extraschedular basis prior to June 14, 2005. The subsequent appeal to CAVC and JMR vacating the Board’s opinion appear to have focused on the award of entitlement to TDIU prior to October 2015, but did not reference any particular argument concerning TDIU on an extraschedular basis. Therefore, the Board’s analysis is based on entitlement to a TDIU from June 14, 2005 to October 2015. The Board notes that on multiple occasions, including the June 2011 and July 2014 VA examinations, the Veteran has indicated he retired due to age eligibility. At that time of the June 2011 VA examination, the Veteran reported has been taking computer technology classes for the past 3 years. The July 2014 examiner noted the Veteran’s statements that since the previous exam, he has remained retired and is not seeking work. Again, the Veteran reported he retired due to reaching an eligible age with a pension. The Veteran indicated he was receiving Social Security Retirement benefits (for retirement) and VA disability benefits. The first objective evidence of record is the March 2011 physician’s statement (by Dr. S.C.M) which reflected that the Veteran’s psychiatric symptoms prevent him from securing or maintaining any form of employment. However, the June 2011 VA examiner noted the Veteran’s statements that he has been taking computer technology classes for the past 3 years. The Board finds that the evidence that the Veteran was engaging in a computer technology course indicative of his efforts and ability to ultimately obtain employment at that time. Further, as referenced above, the Veteran’s own statements indicate that he was retired at the time due to his age, not disability. In a September 2015 statement the Veteran reported that he was “laid off,” and that he has only been able to secure “contract work” as a real estate inspector. Also in September 2015 private physician Dr. SL stated that she has treated the Veteran for his psychiatric symptoms for a decade and opined that it is at least as likely as not that the Veteran’s psychiatric disability prevents him from securing gainful employment. Dr. SL cited the Veteran’s inability to adapt and cope with stressful circumstances as his primary impediment. The competent medical evidence, to include private and VA medical opinions, further support entitlement to a TDIU following September 2015. Therefore, the Board finds that the Veteran’s entitlement to TDIU began September 2015 M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.S. McLeod