Citation Nr: 18158811 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-40 051 DATE: December 18, 2018 ORDER Entitlement to an initial 50 percent rating, but no higher, for service connected other specified trauma and stressor related disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. The reduction of the coronary artery disease (CAD) disability from 60 percent to 10 percent disabling was not proper; restoration of the 60 percent evaluation is granted, effective January 1, 2016. FINDINGS OF FACT 1. The Veteran’s other specified trauma and stressor related disorder symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity. 2. The Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and occupational background. 3. At the time of the October 2015 rating decision, the 60 percent rating for CAD had been in effect for 5 years. 4. The RO did not comply with the procedural requirements for a rating reduction, rendering the reduction void ab initio. CONCLUSIONS OF LAW 1. Since the August 31, 2015 effective date of the grant of service connection, the criteria for an initial rating of 50 percent, but not higher, for other specified trauma and stressor related disorder are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9499-9411. 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. 3. The October 2015 rating decision, which reduced the Veteran’s disability rating for coronary artery disease from 60 percent to 10 percent effective January 1, 2016, is void ab initio, and the criteria for restoration of the 60 percent rating for this condition are met. 38 U.S.C. §§ 1155, 5107; C.F.R. §§ 3.105, 3.344. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1967 to June 1971. 1. Entitlement to an initial evaluation in excess of 30 percent for service connected other specified trauma and stressor related disorder The Veteran’s asserts that he is entitled to a higher disability rating for his service connected other specified trauma and stressor related disorder. Upon review of the evidence of record and giving the Veteran the benefit of the doubt, the Board finds that an initial disability rating of 50 percent, but not higher, for his service connected other specified trauma and stressor related disorder, is warranted for the entirety of the appeal. The Veteran’s other specified trauma and stressor related disorder is currently rated under Codes 9499-9411. Because the Veteran’s specific diagnosis is not listed in the Rating Schedule, Code 9499 has been assigned pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and “99.” See 38 C.F.R. § 4.20. Here, the most closely analogous diagnostic code is Code 9411. The ratings under Codes 9499-9411 are in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the applicable diagnostic codes, a 50 percent disability rating is assigned for 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; difficulty in establishing and maintaining effective work and social relationships). See 38 C.F.R. § 4.130. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 evaluation is warranted for 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; memory loss for names of close relatives, own occupation, or own name. Id. Evidence relevant to this claim includes a VA examination dated November 2015. The examiner diagnosed the Veteran with other specified trauma and stressor related disorder. The examiner indicated that the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran denied any significant history of mental health problems until the summer of 2015. The Veteran expressed that he had been working with his representative, DAV, on his medical claims and that they suggested that the Veteran might have PTSD. The Veteran denied any history of psychosis, mania, depressed episodes, significant or uncontrollable worry, and panic attacks. The Veteran described that he has some “quirks” such as organizational habits but that these do not appear to meet the threshold of obsessive compulsive disorder (OCD). The Veteran reported feeling isolated and cut off from others but clarified this to mean a larger social community. The Veteran endorsed feeling very close to his family. The Veteran reported frequent irritability consisting of “getting loud” with others and being watchful and on guard. The examiner noted that the Veteran’s diagnosis included symptoms of anxiety, chronic sleep impairment, and suicidal ideation. The examiner noted that the Veteran was alert and oriented and was appropriately groomed and dressed. The examiner noted that the Veteran endorsed symptoms of frequent intrusive thoughts accompanied by a physical and emotional intense reaction, attempts to avoid thinking about his military service, and several hyperarousal symptoms. The examiner indicated that the Veteran has irritable behavior and angry outbursts, with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. The examiner indicated that the Veteran’s symptoms appear to have caused the Veteran generally mild functional impairment primarily in the context of social relationships and emotional distress. The examiner noted that the Veteran maintained a successful career in carpentry and has close relationships with his wife of 40 years, children, and grandchildren. In a November 2015 VA mental health note, the Veteran acknowledged recurrent depression with passive suicidal ideation, without plan or intent. The Veteran reported that he has beliefs that he does not want to get attached to people. The Veteran discussed that he feels emotionally attached to his wife, children, and grandchildren, but has trouble expressing his attachment. The Veteran denied problems with anger or irritability. The Veteran reported that his mood was “not too bad for the most part”, but cannot identify interests or pleasures other than spending time with his wife. The examiner noted that the Veteran’s appearance and general behavior was appropriate and that his cognitive function was intact. The Veteran’s was noted to have occasional passive thoughts of being “better off dead”, without plan or intent. The Veteran denied homicidal ideation. In a December 2015 VA mental health note, the Veteran reported that things have been going well with his wife. The Veteran was alert and oriented. The Veteran was appropriately dressed and groomed. His affect was congruent with mood, full range. His thought process was linear. The Veteran’s cognitive function was intact. The Veteran was noted to have occasional passive suicidal thoughts without plan or intent. The Veteran denied homicidal ideation. During his suicide prevention screening, the Veteran expressed that he has never tried to harm himself in the past and that during the past month, he has not harmed himself or attempted suicide. In a January 2016 VA mental health note, the Veteran reported feeling anxious about his financial situation. The examiner noted that the Veteran was alert and oriented and that his appearance and general behavior was appropriate. The examiner noted that the Veteran has occasional passive thoughts of being “better off dead” without plan or intent. The Veteran denied homicidal ideation. Cognitive function was intact. During his suicide prevention screening, the Veteran expressed that he has never tried to harm himself in the past and that during the past month, he has not harmed himself or attempted suicide. In a March 2016 VA mental health note, the Veteran reported a reduction in anxiety. The Veteran noted relief after having various stressors resolved. The Veteran expressed that he now has a firm plan for his living situation, to include building a new home, spending time between his home and his daughter’s home, and travelling. The Veteran reported that a major stressor in his life was his wife having another surgery. The Veteran reported that the stress of the upcoming move has impacted his relationship with his wife but, overall, they are doing good. The Veteran expressed that he has never tried to harm himself in the past and that during the past month, he has not harmed himself or attempted suicide. The examiner noted that the Veteran was alert and oriented and that his appearance and general behavior was appropriate. The Veteran denied suicidal and homicidal ideation. The Veteran’s cognitive function was intact. In a June 2016 VA mental health note, the Veteran reported that everything was going well and that his mood was positive. The Veteran noted that his medication is helping because he noticed that he does not get anxious about things as easily, and that he had less episodes of anger and irritability. The Veteran reported one fleeting thought of suicidal ideation in the last month after arguing with his wife. The Veteran reported increased symptoms of depression, characterized by decreased energy, increased hopelessness, and difficulty concentrating and passive thoughts of suicide. The Veteran reported that he experiences intrusive memories. The Veteran expressed that he has never tried to harm himself in the past. When asked whether he had thoughts of harming himself in the past month, the Veteran expressed that he had one fleeting thought but moved past that thought quickly. The Veteran reported having thoughts that he would be “better off dead” a couple times per year, usually after he gets into an argument with his wife. The Veteran however, denied urge or intent and noted that he does not think he would go through with it. The examiner noted that the Veteran was well groomed and alert and oriented. The Veteran denied homicidal ideation. The Veteran reported poor memory but the examiner indicated that it was not fully assessed. In a November 2016 VA mental health note, the Veteran reported that he bought a camper and lives in it with his wife until his house is built. The Veteran noted feeling an increase in anxiety and stress related to him overseeing the house construction. The Veteran reported that he gets along with his wife better and denied having a depressed or sad mood. No suicidal ideation since his last visit. During his suicide prevention screening, the Veteran expressed that he has never tried to seriously harm himself in the past. The Veteran also has not had any thoughts of harming himself in the past month. The Veteran denied attempting suicide in the past month. The examiner reported that the Veteran’s appearance was well groomed and pleasant. The Veteran was alert and oriented and the Veteran did not have delusions or hallucinations. The Veteran denied homicidal ideation and current suicidal ideation. In an April 2017 VA mental health note, the Veteran reported that his stress has been up with overseeing his house construction. With the increase in stress, the Veteran noted that he has been more irritable and snappy with his wife. The Veteran noted that he has mostly been getting along with his wife with no major arguments, which has led to suicidal ideation in the past. During his suicide prevention screening, the Veteran expressed that he has never tried to seriously harm himself in the past. The Veteran indicated that he has not had any thoughts about harming himself in the past month but noted an occasion a month ago in which he thought of a way in committing suicide. However, the Veteran denied any urge or intent. The Veteran was afforded a VA examination in April 2017. The examiner indicated that the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The examiner reported that the Veteran continues to live with his second wife. The Veteran reported a good relationship with his children and grandchildren. The Veteran reported having many pleasant acquaintances but denied having any close friends locally. The Veteran reported having two good friends out of state. The Veteran denied suicidal ideation, intent, or plan. The examiner noted that the Veteran was appropriately dressed and groomed. The Veteran was alert and fully oriented. The Veteran’s speech was clear and fluent with normal volume, rate, and tone. The examiner noted that there was no evidence of psychotic thought process or delusional content. The examiner opined that the Veteran’s selective, relatively mild, and ongoing mental health symptoms do not pose significant barriers to his ability to sustain gainful employment. However, the examiner opined that it is unlikely the Veteran could resume his prior occupation as a carpenter due to musculoskeletal and cardiac problems. Applying the criteria set forth above to the facts in this case, the Board finds that the Veteran’s disability picture is more nearly approximated by the 50 percent rating for the entirety of the appeal, based on the presence of suicidal ideation. As this decision is favorable to the Veteran, no further explanation is required. In assigning the 50 percent rating, the Board acknowledges that on occasion, the Veteran has expressed passive suicidal ideation, a symptom which is contemplated by the 70 percent rating. In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. Despite the Veteran’s passive suicidal ideation, there is was no finding that the overall disability picture caused occupational and social impairment with deficiencies in most areas, as contemplated by the 70 percent rating. For instance, the Board finds that the Veteran’s fleeting passive suicidal ideation appeared to be related to his marital problems. The VA treatment records show that the Veteran reported having thoughts of being “better off dead” usually after he gets into an argument with his wife. However, the Veteran has consistently denied urge or intent and noted that he does not think he would go through with it. The lack of an intent or plan speaks towards the relatively minimal severity of this symptom. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Overall, the Board does not find that the few periods with which the Veteran mentions suicidal thoughts or ideation demonstrates the severity, frequency, and duration of that sufficient on its own to more nearly approximate the criteria for a 70 percent rating in light of the significant amount of periods in which the Veteran denied such thoughts. Socially, the Board notes that the Veteran has been married to his wife since 1976 and the Veteran has reported having a close and loving relationship with his children and grandchildren. The Veteran has also reported having many pleasant local acquaintances and having two good friends out of state. The Board finds that at no point has the Veteran’s psychiatric disorder manifested in obsessional rituals which interfere with routine activities. His speech has not been intermittently illogical, obscure, or irrelevant. He has not had impaired impulse control. While the Veteran has admitted to being irritable, there have been no physical outbursts or episodes of violence. The Veteran’s irritability was also noted to be caused by stress from the process of building a new home. The preponderance of the evidence shows that the Veteran did not exhibit near continuous panic attacks. Further, there was no indication of neglect of personal appearance and hygiene. Given the forgoing, the Board finds the Veteran’s symptomology during the appeal period aligns with the criteria corresponding to a 50 percent rating and does not meet or more nearly approximate the criteria corresponding to a higher 70 percent rating. The majority of his symptoms are contemplated by a 50 percent rating or lower. Furthermore, there is no evidence of record which established that the Veteran is suffering from total occupational and social impairment. He has not reported symptoms of persistent delusion or hallucinations, inability to perform activities of daily living, or grossly inappropriate behavior. His examination has not found symptoms of gross impairment in thought process or communication, danger of hurting himself or others, or disorientation to time, place or memory loss which would be necessary to warrant a 100 percent rating. In sum, the Veteran’s symptomology and occupational and social impairment correspond to the criteria for a 50 percent rating and do not more nearly approximate the criteria corresponding to a higher 70 percent rating. The Board has applied the benefit of the doubt where appropriate. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. Following this Board decision, the Veteran will be service-connected for coronary artery disease, rated at 60 percent from August 31, 2010 and other specified trauma and stressor related disorder, rated at 50 percent from August 31, 2015. His combined rating is 80 percent as of August 31, 2015. Therefore, he meets the schedular requirements for TDIU. See 38 C.F.R. § 4.16(a). Even so, it must still be found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. On the Veteran’s Application for Increased Compensation based on Unemployability, the Veteran reported that he last worked as a carpenter in June 2007 and that he felt that he became too disabled to work due to his service-connected disabilities since April 2010. The Veteran also reported having only a high school level of education. VA records indicate that the Veteran worked as a carpenter for the last 15 years. The Veteran was afforded a VA heart examination in March 2011. The examiner indicated that the Veteran’s CAD impacted the Veteran’s ability to work. The examiner noted that the Veteran is limited by dyspnea, fatigue, and chest discomfort on moderate exertion. The Veteran was afforded a VA heart examination in April 2017. The examiner indicated that the Veteran’s heart condition impacts his ability to work. The examiner noted that the Veteran gets winded with two flights of stairs. The Veteran submitted a Vocational Employability Assessment by F.G., a certified rehabilitation counselor, dated in February 2017. F.G. expressed that she reviewed the Veteran’s claims file and conducted a telephone interview with the Veteran in February 2017. F.G. opined that it was at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment due solely to his service connected disabilities since 2015. She expressed that from a physical standpoint, beginning in 2010, the Veteran’s heart condition limited him to unskilled jobs with no climbing stairs, no strenuous activity, and no heavy lifting. By 2015, the combination of the Veteran’s psychiatric symptoms including depression, poor concentration, and outburst of anger towards others, impaired the Veteran’s reliability, productivity, and ability to effectively communicate with co-workers and supervisors. As a result, the Veteran was precluded from all employment, regardless of skill requirements of physical demand levels. The Veteran was afforded a VA mental health examination in April 2017. The examiner opined that the Veteran’s selective, relatively mild, and ongoing mental health symptoms do not pose significant barriers to his ability to sustain gainful employment. However, the examiner opined that it is unlikely the Veteran could resume his prior occupation as a carpenter due to musculoskeletal and cardiac problems. In this case, the Veteran’s post-service employment experience is limited primarily to work requiring manual labor. Based on the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s service connected other specified trauma and stressor related disorder and CAD precludes him from maintaining substantially gainful employment that is consistent with his educational and occupational experience. The Board acknowledges the negative opinion found in the April 2017 mental health VA examination, in which the examiner concluded that the Veteran’s other specified trauma and stressor related disorder was not severe enough to interfere with his occupational functioning. However, in light of the private Vocational Employability Assessment and the March 2011 and April 2017 heart VA examination opinions, the Board finds that this opinion is outweighed by other relevant evidence of record showing that the Veteran is not capable of gainful employment due to his service-connected disabilities. The criteria for a TDIU are thus met, entitling the Veteran to TDIU, and the claim is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Whether the reduction of the coronary artery disease disability from 60 percent to 10 percent disabling was proper Substantively, a rating cannot be reduced unless improvement is shown to have occurred. 38 U.S.C. § 1155; Greyzck v. West, 12 Vet. App. 288 (1999). VA regulation 38 C.F.R. § 3.344 addresses stabilization of disability ratings. Provisions at 38 C.F.R. §§ 3.344(a) and (b) require special scrutiny and care in reducing a rating that has continued at the same level for five years or more. See Brown v. Brown, 5 Vet. App. 413 (1993). With regard to the issue of the propriety of a reduction, the administrative history for the claim is as follows: In a March 2011 rating decision, the RO granted service connection for CAD evaluated as 60 percent disabling, with an effective date of August 31, 2010. In an April 2014 rating decision, the RO continued the 60 percent evaluation of the Veteran’s CAD. In a May 2015 rating decision, the RO proposed to reduce the Veteran’s rating to 10 percent, based on the results of a recent examination. In an October 2015 rating decision, the RO implemented the proposed reduction, and reduced the Veteran’s rating to 10 percent, with an effective date of January 1, 2016. In November 2015, the Veteran submitted a notice of disagreement with regard to the reduction of his evaluation for CAD. In July 2016, a Statement of the Case (SOC) was issued. In August 2017, the RO increased the evaluation of the Veteran’s CAD to 30 percent, effective January 11, 2017. In this case, the 60 percent disability rating for the service connected CAD was in effect from August 31, 2010, to December 31, 2015. Accordingly, at the time of the RO’s October 2015 rating decision, the Veteran’s 60 percent evaluation had been in effect for 5 years and therefore the provisions of 38 C.F.R. § 3.344(a) and (b) pertaining to stabilization of disability ratings apply. In cases where a rating has been in effect for 5 years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected. Kitchens v. Brown, 7 Vet. App. 320, 324 (1995). Furthermore, under 38 C.F.R. § 3.344, the RO must find the following: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995); Brown v. Brown, 5 Vet. App. 413 (1993). If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect. 38 C.F.R. § 3.344(b). The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Brown v. Brown, 5 Vet. App. 413 (1993); see also Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (where VA reduces the appellant’s rating without observing applicable laws and regulations the rating is void ab initio and the Court will set aside the decision). A review of the October 2015 rating decision and the July 2016 SOC, shows that the RO appears to have essentially analyzed the issue of reduction of the 60 percent evaluation just as it would a claim for an increased rating. Specifically, the RO failed to discuss the application of 38 C.F.R. § 3.344 in its analysis. The RO did not address whether is it is reasonably certain that the material improvement found in the Veteran’s heart condition will be maintained under the ordinary conditions of life. The Board finds that the RO’s failure to consider and apply the provisions of 38 C.F.R. § 3.344 in its rating actions constituted procedural error under § 3.105(e) and renders the rating reduction void ab initio. The appropriate remedy in this case is a restoration of the 60 percent rating, effective on the date of the reduction. See Hayes, 9 Vet. App. at 73 (improper reduction reinstated effective date of reduction). Accordingly, the 60 percent rating assigned for CAD must be restored, effective January 1, 2016. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.D.