Citation Nr: 1806486 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-33 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating higher than 30 percent for an acquired psychiatric disorder, diagnosed as mood disorder and depression. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1971 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in November 2017. A transcript of the hearing is of record. At his hearing, the Veteran and his representative asserted that he had been rendered unemployable due to his service-connected disabilities, to include his acquired psychiatric disorder. Accordingly, the Board has taken jurisdiction over the issue of entitlement to a TDIU, as reflected on the title page, because it is part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has broadly characterized the Veteran's claim as reflected on the title page. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2015). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the period of the claim, the Veteran's service-connected acquired psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; it has not been productive of total occupational and social impairment. CONCLUSION OF LAW Throughout the period of the claim, the criteria for a 70 percent initial rating, but not higher, for the Veteran's service-connected acquired psychiatric disorder, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2015); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9433 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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.A. § 1155 (West 2015); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Veteran's service-connected acquired psychiatric disorder is rated under the General Rating Formula for Mental Disorders. Under this formula, in pertinent part, a 30 percent rating is warranted 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, or recent events). A 50 percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. 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 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process 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. See 38 C.F.R. § 4.130, DC 9433 (2017). The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran was afforded a VA examination in April 2011. The examiner noted the Veteran had been married once, and had been separated from his wife for many years without getting divorced. The Veteran was noted to have two adult sons from whom he had long been estranged. He was noted to have a few friends who he socialized with, and his other activities included automobile maintenance, watching television, walking, and fishing. The Veteran reported he lived alone and spent much of his time at home. The examiner noted the Veteran's report of mild-to-moderate depression associated with his medical problems, the loss of his relationship with his wife, and his eventual unemployment and homelessness. The examiner stated the Veteran's immediate memory was mildly impaired and that he had some mild long-term decreased concentration. Pronounced problems with communication and interaction with family members as well as decreased motivation were also noted. The examiner indicated the Veteran's psychiatric symptoms resulted in deficiencies in judgment, thinking, family relations, work, and mood. In a November 2017 statement, A.W. asserted she had known the Veteran for 17 years, and had dated him for 10 of those years. She stated she watched the Veteran go downhill, and had left him because all he did was sleep and blame her for things. She noted that his physicians had been unable to improve his condition. The Veteran submitted an additional VA examination report completed by a examiner in December 2017. Following an interview and review of the Veteran's medical history, the examiner indicated the Veteran's psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, an inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The examiner further indicated these symptoms resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. Upon a review of the foregoing, the Board has determined that a 70 percent initial rating is warranted for the entire period of the claim. In this regard, the Board notes the VA examination findings discussed above show the Veteran's psychiatric symptoms have caused significant interference with his occupational and social functioning, to include his marriage, which has resulted in prolonged separation. The Board further notes that both the April 2011 and December 2017 examination reports, completed by VA medical experts, indicated the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. These findings correspond to the rating schedule criteria for a 70 percent rating. See 38 C.F.R. § 4.130, DC 9433 (2017). Upon review, however, neither examiner made a finding that both the Veteran's occupational and social impairment was "total." Indeed, the record shows the Veteran has maintained relationships with several friends during the period of the claim. In addition, the Board notes there is no evidence in the record of gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, or own occupation, or own name. In sum, the Board finds the criteria for an initial rating higher than 70 percent for the Veteran's acquired psychiatric disorder have not been met at any time during the period of the claim. ORDER The Board having determined a 70 percent initial rating is warranted for the Veteran's service-connected acquired psychiatric disorder throughout the period of the claim, the benefit sought on appeal is granted to this extent, subject to the criteria applicable to the payment of monetary benefits. REMAND The Veteran has asserted he is unemployable due to the severity of his service-connected disabilities. However, he has not submitted any VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), and has not otherwise provided a detailed history of his employment. The AOJ has not undertaken development related to this issue. As such, the Board finds a remand is warranted in order to solicit a completed VA Form 21-8940 from the Veteran detailing his work history, along with any other evidence relevant to the issue of entitlement to a TDIU. Accordingly, this case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Solicit a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran, in addition to any other evidence relevant to the issue of entitlement to a TDIU. 2. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs