Citation Nr: 18158975 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-56 980 DATE: December 18, 2018 ORDER Entitlement to a disability rating in excess of 10 percent prior to November 2, 2015 and in excess of 70 percent after November 2, 2015 for a service-connected acquired psychiatric disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT Prior to November 2, 2015, the Veteran’s service connected adjustment disorder with depressed mood and alcohol use was manifested by 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. After November 2, 2015, the Veteran’s service connected major depressive disorder, generalized anxiety disorder and alcohol abuse in remission were not reasonably shown to impose a total occupational and social impairment. The Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for an increased rating for an acquired psychiatric disorder for any time period on appeal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9434. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2002 to May 2005 and from January 2006 to December 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran was service-connected for adjustment disorder with depressed mood and alcohol use disorder in a July 2015 rating decision with a disability evaluation of 10 percent effective May 13, 2013. In a December 2015 rating decision, the RO recharacterized the Veteran’s condition as major depressive disorder, generalized anxiety disorder and alcohol abuse in remission and assigned a disability rating of 70 percent effective November 2, 2017. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, 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. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran’s acquired psychiatric condition has been rated under the criteria of 38 C.F.R. § 4.130, Diagnostic Code 9411, which applies the General Rating Formula for Mental Disorders. In particular, this Diagnostic Code authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. Ratings are assigned according to the manifestation of particular symptoms. Under Diagnostic Code 9411, a 10 percent evaluation is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). A 50 percent rating is warranted where there is evidence of 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. Id. 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); and inability to establish and maintain effective relationships. Id. The next and highest 100 percent rating is warranted for a mental disorder 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 inability 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. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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). Prior to November 2, 2015 VA treatment records reveal that the Veteran was hospitalized in October 2012 after a suicide attempt. Records show that the Veteran reported having an argument with his former spouse and cut his wrist with a knife but denied intent to die. Subsequent records show the Veteran repeatedly denied suicidal ideation and described the October 2012 event as an impulsive act related to his divorce. VA treatment records also show the Veteran repeatedly denied mental health treatment. Mental health records prior to November 2, 2015 are sparse. The Veteran was advised to seek treatment but repeatedly denied doing so. He repeatedly denies suicidal ideation and appears to mainly seek care for trouble sleeping. The Veteran underwent a VA examination in July 2015. The Veteran endorsed depressed mood, anxiety, sleep impairment and difficulties with motivation and mood. The examiner diagnosed adjustment disorder with depressed mood and alcohol use disorder in remission. The examiner opined that a mental condition has been formally diagnosed but symptoms are not severe enough either to interfere with occupational or social functioning or to require continuous medication. The examiner reasoned that at the time of his psychiatric hospitalization, the Veteran had situational factors and was drinking alcohol. Although the Veteran was noted to have ups and downs and to sometime lack motivation, the examiner found him significantly improved, not in psychiatric treatment, in school and working. The Board finds the VA examiner’s opinion, especially in the absence of other mental health treatment records, to be highly probative. Accordingly, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for depressive disorder for the period prior to November 2, 2015. The Board finds that the previously assigned 10 percent rating is appropriate because the evidence of record demonstrates that the Veteran’s psychiatric symptoms, at their worst, result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. The symptoms did not reflect the criteria for a higher rating. After November 2, 2015 The Veteran underwent a second VA examination in November 2015. It was at that time that the Veteran endorsed depressed mood, anxiety, suspiciousness, near continuous depression, sleep impairment, impairment of short and long-term memory, flattened affect, difficulty in establishing and maintaining work and social relationships, and intermittent inability to perform activities of daily living. The examiner diagnosed the Veteran with major depressive disorder and alcohol abuse in remission. The examiner opined that the Veteran has occupational and social impairments with reduced reliability and productivity. The Board finds the VA examiner’s opinion to be highly probative. The Veteran also contends that he is entitled to a 100 percent rating for his service connected major depressive disorder generalized anxiety disorder and alcohol abuse in remission. After a thorough review of the evidence, the Board finds that the evidence does not support a 100 percent rating. The Board finds that the 70 percent rating after November 2, 2015 adequately contemplates the frequency, severity, and durations of his symptoms. In this regard, the Veteran presented with complaints of difficulty sleeping, mood swings, problems with concentration and memory, difficulties in familiar relationships and friendships. See November 2015 VA examination. In November 2015, the VA examiner opined that the Veteran’s PTSD symptoms were causing occupational and social impairments in most areas but did not find total occupational and social impairment. The Board recognizes that the Veteran likely believes he is entitled to the highest available disability rating of 100 percent. However, the record does not contain medical or lay evidence to demonstrate that the Veteran has suffered from symptomatology of the frequency, severity, and duration to result in total social impairment. While the Veteran has described significant symptoms and impairment, the assigned 70 percent rating is meant to compensate him for such a level of disability. Specifically, the assigned 70 percent rating contemplates the severity of the Veteran’s PTSD from the date of his increase rating claim to the present and is the best representation of his overall disability picture. Throughout the appeal period, the Veteran’s PTSD resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran has not shown that his condition warrants the highest schedular evaluation. Because the preponderance of the evidence is against a finding of total social impairment for the entire period on appeal, a 100 percent rating is not warranted. TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). In reaching such a determination, 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 fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App 361. The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person 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, this disability shall be ratable at 60 percent or more, or 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. See 38 C.F.R. § 4.16 (a). Here the Veteran is service-connected for major depression disorder, anxiety disorder and alcohol abuse in remission (currently rated as 70 percent disabling), lumbosacral strain (currently rated as 20 percent disabling), tinnitus (currently rated as 10% disabling), pseudofolliculitis barbae (currently rated as 10 % disabling), herpes (currently rated as 10 percent disabling), traumatic brain injury (currently rated as 10% disabling), status post left wrist tendon repair (0 percent disabling), status post closed fracture of right middle finger (0 percent disabling), post-traumatic headaches associated with TBI (0 percent disabling) and residual scar left wrist repair (0 percent disabling). Therefore, he meets the schedular criteria for TDIU. The Veteran contends he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. He alleges difficulty with concentration, irritability stress and interpersonal difficulties as well as constant pain related to his back. The Veteran alleges these are the reasons why he has stopped working. VA regulations provide that when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App at 53 (1990). Considering the aggregate impact of his significant mental and physical disabilities and affording the Veteran the benefit of the doubt, the Board finds that the evidence of record supports that the Veteran is precluded from engaging in substantially gainful employment as a result of his service-connected disabilities. (Continued on the next page)   Accordingly, the Veteran meets the criteria for an award of TDIU. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The RO will assign an effective date for the TDIU award when it effectuates this decision. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V. Woehlke, Associate Counsel