Citation Nr: 18123745 Decision Date: 08/02/18 Archive Date: 08/02/18 DOCKET NO. 16-38 303 DATE: August 2, 2018 ORDER A 70 percent rating, but no higher, is granted for depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia), subject to the laws and regulations governing the award of monetary benefits. A total disability based on individual unemployability (TDIU) due to service-connected depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia) is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s service-connected depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia) has been manifested by symptoms consistent with occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown. 2. The Veteran’s service-connected depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia) meets the schedular criteria for a TDIU rating, and the competent evidence of record supports a finding that the Veteran’s service-connected disability has been of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia) are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The schedular requirements for TDIU are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service March 1968 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions dated March 2014 and January 2015 from a Department of Veterans Affairs (VA) Regional Office (RO). In March 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ), in a video conference hearing. A transcript of the hearing has been associated with the claims file. 1. Entitlement to a rating in excess of 50 percent for depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia). Legal Standards Disability evaluations are determined by the application of the 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 practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, if they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia), like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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. 38 C.F.R. § 4.130, DC 9434. A rating of 70 percent is warranted for a mental disorder that results in 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. A 100 percent rating is assigned when the condition results in 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. Id. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Merits The Veteran is currently assigned a disability rating of 50 percent for his depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia). He seeks an increased disability rating and TDIU. The competent evidence of record, to include the Veteran’s treatment records, VA examination reports, private medical opinions, buddy statements and the Veteran’s lay testimony, establish findings consistent with a higher rating. After careful review, the Board finds that the Veteran is entitled to a 70 percent disability rating throughout the entire appeals period, but no higher, because while the symptoms of his service-connected psychiatric disability have produced deficiencies in most areas, they have not resulted in total occupational and social impairment. In particular, the Veteran’s treatment records show that he received mental health treatment and was referred to anger management classes and cognitive strategies classes at the Portland VA Medical Center (VAMC). A May 2014 medication management treatment record noted that the Veteran’s appearance was fair, he had mild body odor and was avoidant of eye contact but more responsive to cue and was smiling. While his mood had improved and the Veteran had more emotional control, he still had episodes of tearfulness throughout the session. The Veteran continued to report experiencing intrusive and upsetting thoughts about a remote history of electroconvulsive therapy (ECT), a sense of isolation and forced prolonged hospitalization. The VA psychiatric nurse practitioner provider administered The Saint Louis University Mental Status Examination (SLUMS). The Veteran’s score of 18 indicated that his psychiatric disability included a neurocognitive component which resulted in symptoms such as difficulties with executive functioning and memory. The VA psychiatric nurse practitioner opined that it was unlikely that the Veteran would be able to work in any competitive setting where he was expected to learn new information, work in a consistent and safe manner, and interact appropriately with peers and supervisors. The VA psychiatric nurse practitioner noted that the Veteran was very stress sensitive and was not likely to be successful in any work environment. In September 2016 the Veteran’s primary care physician (PCP) referred him to Dr. L for a private psychological evaluation. Dr. L. indicated that during the Veteran’s psychiatric hospitalization while on active duty, his disability was diagnosed as schizophrenic reaction, undifferentiated, chronic, severe, in partial remission. He was given antipsychotic medication and ECT. Additionally, he was exposed to the injuries of war including burns, disfigurement and missing legs and hands of other soldiers. One of those severely injured men was a close childhood friend. Dr. L. indicated that the Veteran’s current symptomology was consistent with a diagnosis of posttraumatic stress disorder. Dr. L described the Veteran as socially isolated with a reactive temper. He found driving to the store difficult because of frustration and irritability and was upset by noise in restaurants. Although the Veteran managed his own activities of daily living and had not been re-hospitalized for psychiatric symptoms since the 1960’s, the Veteran’s pace persistence and concentration were markedly limited and well documented in a problematic work history. Dr. L. stated that due to the Veteran’s flashbacks and chronic intrusive memories of his hospitalizations, he could not work productively with coworkers or interact in social settings with the public successfully. He opined that the Veteran’s disability impaired social interaction at a marked level and the Veteran was 100 percent disabled from work as a result. Dr. L. referred the Veteran to Dr. B. for a psychological assessment to aid in diagnostic clarification. In October 2016, Dr. B administered the Generalized Anxiety Disorder 7 item scale (GAD-7), the Patient Health Questionnaire (PHQ-9), the PTSD checklist-5, the Personality Assessment Inventory(PAI), a mental status examination and conducted a clinical interview with the Veteran. The Veteran reported intrusive dreams, occasional nightmares, feeling easily frustrated and agitated, being unable to relax, having dark thoughts and feelings of rage and anger. While the Veteran recognized that he overreacted, he felt unable to control or redirect his emotions. Dr. B. indicated that the Veteran’s PAI profile appeared valid although there were indications that he responded with some level of defensiveness and possible magnification of certain symptoms. The Veteran’s profile suggested that he experienced significant tension, unhappiness, and pessimism. The Veteran had low self-efficacy and felt overwhelmed by a combination of hopelessness, anxiety and stress. He was moody and emotionally labile at times. The Veteran reported mostly cognitive and affective symptoms such as low mood, worry, loss of interest in activities, stress and tension. The Veteran’s PHQ-9 score placed him in the mild range of symptoms. The Veteran had low energy and appetite problems but denied suicide ideation. His GAD-7 score was in the severe range indicative of significant anxiety nearly every day. The Veteran endorsed extreme difficulties with experiencing positive emotions, irritability and hypervigilance and severe difficulties with intrusive memories and flashbacks, avoidant symptoms and strong negative feelings such as guilt and fear, with other symptoms falling in the mild to moderate range. He reported severe difficulties with learning new tasks, dealing with the emotional impact of his problems, staying focused and participating in society in general. Dr. B opined that the Veteran met the criteria for posttraumatic stress disorder but that his symptoms could also be explained by persistent depression and generalized anxiety. The Veteran’s private PCP of ten years, stated in a narrative assessment dated January 2017, that the Veteran continued to have emotional and mental problems daily, including flashbacks, panic attacks and anger issues. The PCP opined that the high level of stress the Veteran experienced kept him from working for the past fifteen years and contributed to the problems he had with previous jobs. He often cried, considered suicide and wore a bracelet with the VA crisis line phone number. The Veteran’s PCP reviewed a lay statement from a co-worker of the Veteran who stated that he often saw the Veteran having difficulty completing jobs and responding with unprofessional anger. The PCP opined that the Veteran’s depression, anxiety and PTSD made him unemployable. The Veteran was afforded VA examinations in December 2013, December 2014 and June 2016 to assess his psychiatric disability. The December 2013 VA examiner diagnosed the Veteran’s psychiatric disability as mild anxiety disorder and mild depressive disorder. The Veteran reported symptoms such as periods of anger and agitation, difficulty with worry and feeling nervous in social situations, depressed mood and meltdowns. The VA examiner opined that the Veteran’s mental diagnoses caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The December 2014 VA examination report listed anxiety disorder, unspecified and depression unspecified as the psychiatric diagnoses. The Veteran’s symptoms included worsening anxiety and depression, irritation, and anger when things did not function the way he wanted them too. He reported breaking a printer, a chair and flashlights. The examiner noted that the Veteran remarried after his first wife passed away from lung cancer. The Veteran also stated that he attended church twice a month and participated in a church camping trip. He also socialized with his grandchildren. The Veteran indicated that he had worked in one job for twenty years and drank a lot of beer to deal with the stress. He had some confrontations with people at work, but had no memory problems or difficulties completing the work. He stated he was uncertain why he was laid off, but thought it might have been due to the economy. The Veteran also told the VA examiner that he completed anger management therapy and was taking a memory class. The December 2014 VA examiner remarked that the Veteran’s symptoms were the same or somewhat worse than those shown during the December 2013 VA examination, and noted that the Veteran had below average concentration and memory which would further impact him if he returned to work. The VA examiner concurred with the prior VA assessment that the Veteran’s occupational and social impairment would result in only occasional decreases in functioning. The June 2016 VA examination report identified the Veteran’s psychiatric diagnoses as major depressive disorder, anxiety disorder, mild neurocognitive disorder and complicated grief reaction. The VA examiner also listed additional diagnoses of history of mixed specific learning disabilities, childhood onset and sleep apnea as contributing to the Veteran’s disability. The VA examiner noted that the Veteran was disheveled but cooperative during the examination with coherent speech, that slowed with response latencies. The Veteran reported ongoing irritability, anger management issues, persistent anxiety and sleep disturbance due to sleep apnea. The VA examiner stated that neuropsychological testing would be helpful in assessing the severity of the cognitive impairment and while the onset was unclear, symptoms of reduced cognition were more notable in the two years prior based on chart review. A word fluency screening test was positive for deficits in word retrieval. The June 2016 VA examiner opined that the Veteran’s neurocognitive disorder would impact executive functioning, speed and productivity in terms of completing tasks, concentration and the accuracy and quality of task completion. The VA examiner also stated that it was less likely than not the Veteran’s neurocognitive disorder was related to service. The VA examiner concluded that the Veteran’s mental diagnoses, specifically major depressive disorder and anxiety disorder, would cause occupational and social impairment with reduced reliability and productivity. However, the VA examiner also concluded that if symptoms of from his grief disorder and neurocognitive disorder were included, the Veteran’s level of functional impairment would be deficient in most areas. The Veteran’s wife submitted a lay statement dated June 2013 describing her husband as a warm compassionate person with family and friends. She indicated that their marriage was good and that they were happy together, but she felt helpless regarding his difficulties with depression and anxiety. She stated that the symptoms worsened after the deaths of his first wife and two best friends, and when a third close friend moved out of state. Given the foregoing the Board finds that the symptoms of the Veteran’s depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia) most closely approximate the criteria for a 70 percent rating. Despite the findings from the December 2013, December 2014, and June 2016 VA examiners that the Veteran’s psychiatric disability resulted in only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, or reduced reliability and productivity, his VA and private treatment records consistently reflect that the Veteran had a reactive temper and continued difficulty managing anger due to anxiety and depression. His rage appeared triggered by frustrations with others at the workplace, in public settings and even while driving. While the Veteran reported knowing he was overreacting emotionally but he simultaneously acknowledged that he was unable to control or redirect those feelings even with medical intervention. In addition to anger, the Veteran’s depression and anxiety made him emotionally labile, producing tearful episodes, panic, flashbacks, difficulty sleeping, memory problems and worry. While the evidence supports a finding that the Veteran has significant impairments in occupational and social function, the Board also notes that despite his psychiatric disability the Veteran has created a life for himself which includes family and friends. After his first wife passed away, he was emotionally stable enough to find another partner and rebuild a life with her. Although the Veteran testified that he stayed at home and disliked socializing, he acknowledged that he and his wife attend church. Other evidence in the Veteran’s claims file documents his participation in social events with his church community including a camping trip and visiting with his grandchildren. These facts preponderate against a finding that the Veteran’s psychiatric disability results in total occupational and social impairment. Accordingly, the Board finds that the symptoms of the Veteran’s psychiatric disability do not rise to the level anticipated by the criteria for a 100 percent rating under the General Rating Formula for Mental Disorders but most closely approximate a 70 percent rating. 2. Entitlement to total disability due to individual unemployability (TDIU). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, because of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s current service-connected disability is depressive disorder and anxiety disorder (previously rated as undifferentiated schizophrenia). As the above decision grants a 70 percent rating for that disability, the schedular rating requirements for TDIU, under 38 C.F.R. § 4.16(a), are satisfied. The Veteran contends that his service-connected disability renders him unemployable. On review of the record, the Board finds that such is reasonably shown. In particular, the Veteran has submitted a statement from a former co-worker in June 2016, who described how the Veteran’s service-connected disability impacted his pace and persistence in the workplace. The coworker noted that the Veteran often had difficulty completing the jobs in a timely manner. He often required two days to complete a job and sometimes another technician had to be called in to complete it. The co-worker also indicated that the Veteran had difficulty containing his frustration and lashed out in unprofessional anger. The Veteran’s anger issues at work made any positive relationship difficult. Despite remaining on friendly terms, the co-worker declined to offer the Veteran a job when he started his own business because he felt that the Veteran would have difficulty managing stress and maintaining a professional attitude. The lay statement from the Veteran’s coworker is corroborated, in part, by the report from an May 2014 VA treatment report wherein it was the psychiatric nurse practitioner’s opinion that it was unlikely that the Veteran would be able to work in any competitive setting where he was expected to learn new information, work in a consistent and safe manner, and interact appropriately with peers and supervisors. She noted that the Veteran was very stress sensitive and was not likely to be successful in any work environment. As previously discussed, the Veteran also submitted a private psychological assessment by Dr. L. who opined that the Veteran’s disability impaired social interaction at a marked level and the Veteran was 100 percent disabled from work as a result. Dr. L. stated that due to the Veteran’s flashbacks and chronic intrusive memories of his hospitalizations, he could not work productively with coworkers or interact in social settings with the public successfully. The Veteran testified at his videoconference hearing that he last worked in 2001 in a factory that fabricated circuit boards and transistors. He was let go from that job. He also stated that he had filed hundreds of job applications in attempt to find any type of work and attended many interviews. However, he was never selected. The Board notes that the June 2016 VA examiner opined that the Veteran’s mental diagnoses, specifically depressive disorder and anxiety disorder would cause occupational and social impairment with reduced reliability and productivity. However, that examiner also concluded that the Veteran’s level of functional impairment if symptoms of from his grief disorder and neurocognitive disorder were included would be deficient in most areas. (Continued on the next page)   Given the foregoing body of evidence, the Board resolves all reasonable doubt in the Veteran’s favor (as required by law) and concludes that the evidence supports a finding that his service-connected disability precludes him from securing or following substantially gainful employment. Therefore, the criteria for establishing entitlement to TDIU are met. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Alexander, Associate Counsel