Citation Nr: 18159504 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-06 842 DATE: December 19, 2018 ORDER Entitlement to a rating in excess of 50 percent for an unspecified anxiety and depressive disorder is denied. Entitlement to total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the pendency of this appeal, the Veteran’s unspecified anxiety and depressive disorder is shown to be productive of occupational and social impairment with reduced reliability and productivity, due to symptoms adequately contemplated by the criteria for a 50 percent evaluation. 2. The Veteran’s service-connected disabilities do not preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for an unspecified anxiety and depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.126a, 4.130, Diagnostic Code (DC) 9400. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1974 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision and an April 2017 rating decision of the VA Regional Office (RO) in St. Louis Missouri. 1. Entitlement to a rating in excess of 50 percent for an unspecified anxiety and depressive disorder The Veteran asserts that a higher rating is warranted for his anxiety and depressive disorder. The Board notes that the Veteran was assigned a disability rating of 70 percent prior to March 1, 2017, and 50 percent from March 1, 2017, for his anxiety and depressive disorder under DC 9400. This appeal arose from an April 2017 rating decision issued subsequent to the rating reduction, and such reduction in and of itself is not presently on appeal. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Diagnostic Code 9400 provides compensation for general anxiety disorders under the General Formula for Rating Mental Disabilities. 38 C.F.R. § 4.130. Under that code, a 50 percent rating is provided when there is 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; and 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 worklike setting); inability to establish and maintain effective relationships. Id. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather 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). A Veteran may only qualify for a disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the United States Court of Appeals for Veterans Claims (Court) further addressed the value of GAF scores. The Court noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with metal disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” The Court further explained that although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases. Since March 2017, the Veteran’s VA treatment records are negative for suicidal or homicidal ideation. In January 2017, the Veteran’s VA psychiatrist did note that the Veteran had a history of chronic suicidal ideation, but the Veteran has not displayed suicidal or homicidal ideation during the period on appeal. The Veteran was positive for sleep difficulties, feelings of hopelessness and worthlessness, impaired concentration, and major depressive disorder (MDD). In September 2017, the same VA psychiatrist noted that the Veteran was negative for delusions, perceptual disturbances, homicidal or suicidal ideation, and his appearance and grooming were appropriate. During the Veteran’s February 2017 VA examination for mental disorders, the examiner opined that the Veteran suffered occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although functioning satisfactorily, with normal routine behavior self-care, and conversation. The examiner noted that the Veteran was negative for suicidal or homicidal ideation, his hygiene was adequate, and he was capable of managing his own financial affairs. The examiner did note that the Veteran was depressed and anxious, experienced disturbances to his mood and motivation, and had difficulty in establishing and maintaining relationships and difficulty in adapting to stressful circumstances. However, the Veteran was not obsessional with rituals, near-continuously panicked, or experiencing spatial disorientation. The Veteran also reported recently having a girlfriend for 4 to 5 months, maintaining limited relationships with some of his children, and attending Disabled American Veterans (DAV) meetings. The Veteran’s representative submitted statements in December and February 2017 arguing that the Veteran’s symptoms entitled him to a higher rating. See December 2017 Appellant’s Brief; February 2017 Statement of Accredited Representative. Similarly, the Veteran contended that his VA psychiatrist’s opinion should be given more weight than the VA examiner’s because the psychiatrist had more experience with the Veteran and his personal circumstances. Given that this psychiatrist found a history of chronic suicidal ideation, but none at present, the Board finds nothing in the psychiatrist’s entries to support a higher evaluation. Based on the evidence concerning the period on appeal, the Veteran’s symptoms are most consistent with those contemplated by a 50 percent rating. Notably, while the Veteran has a history of suicidal ideation, he has been negative for suicidal and homicidal ideation during the period in question. Additionally, the Veteran’s hygiene has been adequate, he has not experienced hallucinations, delusions, spatial disorientation, and maintains limited family and social relationships. Therefore, for the period from March 2017, the Veteran has not demonstrated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood, warranting a 70 percent disability rating. Based on the foregoing, the Board finds that a disability rating in excess of 50 percent for the period from March 2017 is not warranted. 38 C.F.R. § 4.130, DC 9400. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 2. Entitlement to individual unemployability The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The Veteran filed his claim for TDIU in November 2014, when he was rated at 70 percent for anxiety and depressive disorder, thus meeting the criteria for schedular consideration of TDIU until March 1, 2017, when his rating was decreased to 50 percent. His only other service-connected disability is a nervous facial tick, rated as zero percent evaluated throughout the pendency of this appeal. VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining 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). Advancing age, any impairment caused by conditions that are not service-connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. §§ 4.16(a), 4.19. TDIU may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where these rating requirements for TDIU are not met, a total disability rating may nevertheless be assigned on an extraschedular basis when the veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to a TDIU on an extraschedular basis to the Director of Compensation and Pension Service. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board thus notes that 38 C.F.R. § 4.16(a) applies prior to March 1, 2017, whereas 38 C.F.R. § 4.16(b) applies subsequent to that date, in light of the aforementioned rating reduction. Regardless of the provisions applied, the core question for the Board remains whether the Veteran’s service-connected disabilities have precluded him from securing and following substantially gainful employment. The Veteran was discharged from service in December 1978. After service the Veteran worked as a truck driver for over 30 years, until his non-service connected diabetes prevented him from driving in 2007. See February 2017 VA examination. The Veteran worked off and on as a taxi driver until 2014. Id. During the Veteran’s February 2017 VA examination, the examiner opined that the Veteran suffered occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although functioning satisfactorily, with normal routine behavior self-care, and conversation. The Veteran reported that he quit working as a taxi driver because it was too hard to meet the financial obligations and work the hours necessary. The Veteran reported having to take breaks due to “feeling bad and needing to go home and lay down.” He would also avoid picking up clients when his facial twitch was active. When asked about his current barriers to employments, the Veteran stated that his diabetes prevented him from driving trucks. During the Veteran’s June 2016 VA examination, he stated that he could not work because he sometimes needed to lay down during the day, he experienced anxiety in public, he had a lot of doctor’s appointments, and that it would be too hard. The examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran submitted statements by his VA psychiatrist, who noted that the Veteran’s anxiety and depression prevented him from functioning adequately inside and outside his home, and that the Veteran had been unable to be productively employed. See January 2017 VA treatment records. In summary, there is insufficient competent evidence of record suggesting that the Veteran’s service-connected disorders, in and of themselves, preclude him from securing or following a substantially gainful occupation. At no time has any VA examiner or any other trained and credentialed medical or mental health professional offered the opinion that a substantially gainful occupation is precluded by his service-connected disabilities. While his VA psychiatrist did state that the Veteran has not been able to be productively employed, she did not specify that his service-connected disabilities, considered alone, actually precluded him from obtaining and maintaining any substantially gainful employment. See January 2017 VA treatment record. By contrast, as noted above, the February 2017 VA examiner found occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although functioning satisfactorily, with normal routine behavior self-care, and conversation. The Veteran submitted a December 2012 lay statement in which he stated that he had lost employment due to not being able to handle the stress of the workplace. In the Veteran’s January 2017 Form 9 for TDIU, he argued that he was not capable of being employed and that his VA examiners were not familiar enough with his condition to be able to give an accurate assessment of his work capability. He also argued that he could not make enough money as a taxi driver dur to his anxiety and depression. The Board has given full consideration to the Veteran’s assertions; however the Veteran lacks the medical training or credentials to competently ascertain that a discrete group of disabilities is of sufficient severity as to preclude him from securing or following a substantially gainful occupation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His opinion in this regard is accordingly of very limited probative value, particularly in comparison to the opinions offered by the noted VA examiners. While the Board acknowledges that the Veteran’s service-connected disabilities have been shown to cause a significant degree of interference with his employability, such interference is fully contemplated by the individually assigned disability ratings. Based on the foregoing, the Board finds that the Veteran’s service-connected disabilities do not preclude all forms of substantially gainful employment consistent with his educational and employment background. For the period beginning March 1, 2017, there similarly exists no basis for referring this case to the Director, Compensation and Pension, for extraschedular consideration. Accordingly, the Board concludes that for the period prior to March 1, 2017, the criteria for TDIU are not met, and the claim must be denied. See 38 U.S.C. §5107. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Evan Thomas Hicks