Citation Nr: 18159415 Decision Date: 12/20/18 Archive Date: 12/19/18 DOCKET NO. 17-24 480 DATE: December 20, 2018 ORDER Entitlement to service connection for a left arm disability as secondary to acquired psychiatric disability is granted. Entitlement to a disability rating in excess of 50 percent for anxiety prior to April 25, 2016 is denied. Entitlement to a disability rating of 70 percent for anxiety reaction is granted effective April 25, 2016. Entitlement to a disability rating of 100 percent for anxiety reaction is granted effective July 11, 2017. REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 11, 2017 is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the motor vehicle accident which resulted in the Veteran’s left arm disability was the result of his service-connected acquired psychiatric disability. 2. The evidence shows that prior to April 25, 2016, the Veteran’s anxiety reaction symptoms were consistent with occupational and social impairment with reduced reliability and productivity. 3. As of April 25, 2016, the Veteran’s anxiety reaction symptoms were shown to result in occupational and social impairment with deficiencies in most areas including work, family, judgment, thinking, and mood. 4. As of July 11, 2017, the Veteran’s anxiety reactions symptoms were shown to result in total occupational and social impairment with symptoms including persistent hallucinations and delusions, inability to establish and maintain relationships, difficulty adapting to stressful circumstances, disorientation to time or place, and neglect of personal appearance and hygiene. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left arm disability as secondary to acquired psychiatric disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 2. The criteria for entitlement to a disability rating in excess of 50 percent for anxiety reaction prior to April 25, 2016, were not met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9413. 3. The criteria for entitlement to a disability rating of 70 percent, and no higher, for anxiety reaction were met as of April 25, 2016. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9413. 4. The criteria for entitlement to a disability rating of 100 percent for anxiety reaction were met as of July 11, 2017. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from January 1971 to April 1974, to include service in the Republic of Vietnam. This matter was previously before the Board in October 2017, when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. Entitlement to service connection for a left arm disability as secondary to acquired psychiatric disability Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires (1) competent evidence (a medical diagnosis) of current chronic disability; (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran was granted service connection for the acquired psychiatric disability of anxiety reaction at the time of his separation from service. In December 1979, he was involved in a single-car motor vehicle accident in which he sustained serious injuries to his left arm, resulting in multiple surgeries and a current ongoing disability. The Veteran has asserted that the accident in question was a result of a suicide attempt in response to extreme distress and flashbacks to Vietnam. The record shows that the Veteran had attempted suicide in July 1979, just a few months prior to the December 1979 accident, wherein he tried to overdose by mixing alcohol and medication. During treatment for the injuries to his left arm following the accident, he did not assert or otherwise indicate that the accident was a suicide attempt. However, a treatment note dated in August 1981 indicated that the Veteran was feeling depressed and had ideas of self-harm, and that he was abusing alcohol and mixing it with pills prior to his car accident. In a statement submitted in August 2007, the Veteran asserted that the car accident in December 1979 was part of a suicide attempt fueled by depression and rage and accompanied by flashbacks to Vietnam. He stated that he had accelerated to 90 miles per hour with a curve approaching, then tried to brake, but was unsuccessful. Instead, the car flipped and he was injured. The circumstances of this case are unusual, in that the disability in question was sustained 30 years prior to the claim for benefits. There is no doubt that the Veteran has a current disability of the left arm that is the result of the December 1979 motor vehicle accident. The question before the Board is whether the accident was the result of a service-connected disability, a question that is difficult to answer with so many years having elapsed. Indeed, any opinion which the Board might obtain would, of necessity, be based on speculation and the statements of the Veteran. For this reason, the Board finds that further postponing adjudication of the claim to obtain an opinion would be futile. The law provides that, where the evidence is at least in equipoise (equally balanced), the benefit-of-the-doubt shall be given to the Veteran. 38 U.S.C. § 5107(b). Here, the Board finds that the evidence is equally balanced. The Veteran was shown to have been dealing with occasional exacerbations of his acquired psychiatric disability that had prompted suicide attempts, misuse of alcohol and medication, and thoughts of self-harm. While he didn’t report at the time of the accident that he had been experiencing such symptoms that ultimately caused the accident, the incidents of self-harm prior to and after the accident are indicative that the motivation and intention of self-harm were likely present at the time. Therefore, the Board will afford the Veteran the benefit-of-the-doubt and find that the cause of the motor vehicle accident was his service-connected acquired psychiatric disability. Entitlement to an increased disability rating for anxiety reaction 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 or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In this instance, staged ratings were assigned for the Veteran’s anxiety disorder. While the Board agrees that staged ratings are indicated, the assigned ratings and effective dates have been adjusted, as discussed below. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: 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, warrants a 50 percent rating. 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 worklike setting); inability to establish and maintain effective relationships, warrants a 70 percent rating. 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; memory loss for names of close relatives, own occupation, or own name, warrants a 100 percent rating. 38 C.F.R. § 4.130. Prior to April 25, 2016 An August 2009 VA examination noted that the Veteran was retired from the Postal Service and lived with his wife. He was taking antidepressants, anxiolytic, and hypnotic medications and was receiving treatment from private and VA providers. He reported having feelings of irritability and ill-humor. He had some improvement in his mood, but mostly felt emotionless, without any crying spells, suicidal or homicidal ideation, or anhedonia; he was generally functioning well at home and at work. The examiner characterized the Veteran’s disability picture as one of occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to mental disorder signs and symptoms. At a treatment visit in April 2012 the Veteran described having an irritable mood most of the time, largely due to not being able to work and his physical disabilities. He denied any suicidal or homicidal ideation. He reported hearing voices at home about negative things, having nightmares about Vietnam, and feeling a lot of disappointment. He had retired from the Postal Service after 34 years and lived at home with his fifth wife, who was his main support system. He did not have any hobbies. At a treatment visit in September 2012, the Veteran reported feeling well with his psychiatric medications he was prescribed by his private provider for bipolar disorder and anxiety disorder. He reported chronic nightmares, poor concentration, and some memory difficulties, with good support from his wife and no ideas of homicide or suicide or psychotic features. Based on the evidence discussed above, the Board finds that entitlement to a disability rating higher than 50 percent for the Veteran’s mental health disability was not demonstrated prior to April 25, 2016. Specifically, the Veteran did not show occupational and social impairment with deficiencies in most areas. Although he had mood disturbances in the form of depression and anxiety, he did not report symptoms suggestive of deficiencies in judgment or thinking and he had a good relationship with his wife and daughter. The Veteran’s symptoms of mild memory loss, panic attacks, and difficulty with work relationships are not beyond those contemplated by the criteria for a 50 percent disability rating. Thus, an increased rating for this period is not warranted. 38 C.F.R. § 4.130. As of April 25, 2016 The Veteran’s private provider submitted a statement in April 2016 regarding his condition. It included a list of symptoms such as nervousness, anxiety, irritability, impaired impulse control, panic attacks with generalized tremor which prevented him from performing fine movements, difficulty in establishing and maintaining effective work and social relationships, disturbances of motivation and mood, isolation episodes, delirium, audio and visual hallucinations, insomnia, nightmares, flashbacks, poor frustration tolerance, suspiciousness, memory loss and poor concentration. A VA examination in May 2016 noted the Veteran’s diagnosis of generalized anxiety disorder, rated as anxiety reaction, and described a disability picture of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner stated that the Veteran did not have a history of behavioural disturbances or substance abuse. Symptoms were listed as anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The statement dated April 25, 2016 provides a disability picture related to the Veteran’s mental health disability which is clearly worse than that shown in prior records. Specifically, it includes symptoms such as delusions and hallucinations, impaired impulse control, and difficulty establishing and maintaining effective relationships which were not reported prior to that date. These symptoms are consistent with a disability picture of deficiencies in most areas including work, family, thinking, judgment, and mood. Although the May 2016 VA examination does not indicate the same level of impairment, it is of less probative value because it overlooks the Veteran’s history of substance abuse and does not address the symptoms included in the April 2016 statement. Therefore, a 70 percent disability rating is warranted as of the April 25, 2016 statement. 38 C.F.R. § 4.130. As of July 11, 2017 The Veteran’s mental health provider completed an examination of the Veteran in July 2017 which listed three diagnoses for the Veteran: schizoaffective disorder, depressive type; panic attacks with agoraphobia;, and chronic posttraumatic stress disorder (PTSD). The provider indicated that the Veteran’s disability picture was consistent with one of occupational and social impairments with deficiencies in most areas. The provider stated that the Veteran exhibited major depressive symptoms, mood swings, poor stress tolerance, poor impulse control, hallucinations, suspiciousness, chronic sleep impairment, and multiple somatic complaints which were painful in nature. The provider indicated that the following symptoms were present: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationship, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, persistent delusions or hallucinations, disorientation to time or place, and memory loss for names of close relative, own occupation, or own name. At a VA examination in December 2017, the Veteran’s diagnosis of generalized anxiety disorder was noted. The examiner stated that no other mental disorder was diagnosed. The Veteran’s disability picture was described as one of occupational and social impairment due to mild or transient symptoms which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran’s symptoms were described as depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner stated that the Veteran’s symptoms were not severe enough to interfere with his daily marital relations, parenting performance, activities, family responsibility, financial debts, and social functioning. The examiner further stated that the Veteran had lived a very productive life, retiring from the Postal Service after 33 years, and that his anxiety disorder never precluded him from his gainful job. After considering this evidence, the Board finds that the Veteran’s disability picture has progressed to one of total occupational and social impairment, consistent with a 100 percent disability rating, as of the date of the private provider’s examination on July 11, 2017. Although the provider selected the criteria for a 70 percent rating (deficiencies in most areas), the provider also described the Veteran as suffering from many of the symptoms listed under the 100 percent rating criteria, including persistent delusions or hallucinations, disorientation to time or place, and severe memory loss. Inasmuch as the provider did not indicate if all of the diagnoses provided were due to service, but did include panic attacks which are part of the service-connected disability of anxiety reactions, the Board must consider all symptoms to be related to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). Finally, the Board notes the opinion of the VA examination in December 2017, but assigns it minimal probative value. The opinion seems to hinge on the Veteran’s ability to work while employed by the Postal Service, a job which he left in 2009, rather than on his current level of functioning. In addition, it does not acknowledge the July 2017 opinion, overlooked the Veteran’s history of substance abuse, and noted the Veteran’s current marital relationship without acknowledging that this is his fifth marriage. As such, it is of limited probative value when compared with the opinion of the Veteran’s treating mental health provider. For all of these reasons, the Board finds that a 100 percent disability rating is warranted as of July 11, 2017. 38 C.F.R. § 4.130. REASONS FOR REMAND Entitlement to 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. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, the Veteran is shown to have been unemployed since 2009, when he last worked at the Postal Service. For the period prior to the date of the 100 percent disability rating assigned above, that is, July 11, 2017, the issue of entitlement to TDIU must be addressed. However, in light of the decision above awarding service connection for a left arm disability, which would affect the Veteran’s ability to obtain and maintain substantially gainful employment as well as the combined disability rating assigned, further development is warranted. Accordingly, the case is REMANDED for the following action: (Continued on the next page)   After a disability rating is assigned for the Veteran’s left arm disability and a new combined disability rating has been calculated, reassess the Veteran’s entitlement to TDIU prior to July 11, 2017. If necessary, obtain a medical opinion regarding the impact of the Veteran’s left arm disability on his ability to perform occupational tasks such as lifting, carrying, typing, manipulating objects, and operating machinery. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Cheryl E. Handy, Counsel