Citation Nr: 1829211 Decision Date: 05/24/18 Archive Date: 06/12/18 DOCKET NO. 14-21 042A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1) Entitlement to an initial rating in excess of 30 percent for an anxiety disorder Not Otherwise Specified (NOS). 2) Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from May 2000 to May 2004. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes in June 2014, the Veteran submitted a Form 9 that requested a Board videoconference hearing. Subsequently, in July 2016, the Veteran withdrew his hearing request. FINDINGS OF FACT 1) The Veteran's anxiety symptoms are reflective of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2) The Veteran is not rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disability. CONCLUSIONS OF LAW 1) The criteria for a rating in excess of 30 percent disabling for an anxiety disorder NOS have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.14, 4.130, Diagnostic Code (DC) 9413 (2017). 2) The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Procedural Duties VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.159, 3.326(a) (2017). Here, regarding the duty to notify, VA sent the Veteran a predecisional notification letter in July 2011. Next, VA has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records and all relevant pre-and post-service treatment records, and by providing an examination, when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Regarding the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records including service treatment records, post-service VA treatment, and private treatment records. The Veteran has not identified any additional outstanding records. The Veteran was afforded VA examinations in August 2011, November 2011, and December 2011. As such, the Board will proceed to the merits. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. In determing the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson, 12 Vet. App. 119, 126-27. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Estban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. A 30 percent evaluation 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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-term 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. 38 C.F.R. § 4.130, DC 9413. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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); inability to establish and maintain effective relationships. Id. Lastly, a 100 percent evaluation is warranted for 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 ability 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. The symptoms recited in the criteria in the General Rating Schedule for evaluating mental disorders 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, 442 (2002). Nonetheless, the Court of Appeals for the Federal Circuit (Federal Circuit) acknowledged the "symptom-driven nature" of the General Rating Formula. The Federal Circuit observed that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (emphasis added). The Federal Circuit explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Thus, the Board will consider all psychiatric symptomatology when assessing the ratings. The Board notes that the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM)-V no longer utilizes GAF scores. DSM-V is applicable for cases certified to the Board on or after August 4, 2014. This case was certified to the Board in December 2016 and thus is controlling here. Anxiety Disorder After review of the relevant medical and lay evidence, the Board finds that a rating in excess of 30 percent disabling for anxiety disorder NOS is not warranted. In records leading up to the rating period on appeal, and thus potentially relevant to the period in question, the Veteran described ongoing systems of anxiety; feeling jittery and nervous; waking up feeling anxious; and being more alert than normal in December 2008. See Medical Treatment December 2008 to March 2011. Further, he indicated he was unemployed and going through a court case because his previous employer had accused him of theft. He denied committing the crime. Id. During subsequent treatment in November 2010 he reported ongoing symptoms related to insomnia, nightmares, and irritability. Moreover, he was spending time discussing his combat experiences with his father, who was a Vietnam Veteran. Id. Clinical Testing in March 2011 showed the Veteran's symptoms had improved. He was administered the Beck Depression Inventory (BDI-2), Beck Anxiety Inventory (BAI), and the SF-36 Health Survey. Id. His beginning score on the BDI-2 was 37 considered a severe rating, which was followed by a 21 moderate rating. On the BAI assessment his beginning score was 35 noted as severe followed by a moderate score of 25. Finally, his initial score on the SF-36 was a 16 and then he ended with a 48. The higher the score on the SF-36 represented improved mental health. Id. Consistently throughout the treatment records from December 2008 to March 2011, the Veteran is described as casually dressed and appropriately groomed; alert and oriented; generally arriving early for appointments; showing good rapport; and actively participated in the sessions. In August 2011 the Veteran was afforded a VA mental health examination. During the examination he reported that his marriage to his wife of 10 years was going well. He reported having a good relationship with his parents, with frequent contact. He had a daughter that turned nine years old on the day of the examination. He reported having few friends, due to trust issues. He was anticipating graduating with an Associates of Science Degree from the local community college. Then he planned on transferring to begin working on a Bachelor's Degree. See VA Examination August 2011. The report also noted some disagreements with managers at his last job as a driver for a beverage company. He had experienced no problems with his co-workers. Following the August 2011 VA examination, the Veteran provided a Statement of Support dated October 2011 where he reported symptoms of insomnia; awakening to nightmares with scenes from his tour of duty in Iraq; avoidance of crowds; and significant trouble maintaining employment due to his inability to "get along with management." He further stated that prior to his deployment he had been the type of employee who generally received high praise from his bosses. In October 2011, the Veteran submitted a TDIU application stating that he had submitted resumes to numerous employers over the course of the past few years in fields from computer repair and networking to retail and general labor, with no success. See TDIU Application October 2011. Another VA mental health examination was conducted in November 2011. The Veteran reported irritability once or twice a day; problems with concentration in group settings; hypervigilance; exaggerated startle response at loud noises; nightmares 5 times a week; depressed mood; anxiety; and chronic sleep impairment. See VA Examination November 2011. He did not report symptoms related to suicidal ideations or hallucinations. Moreover, he was still working on his Associate's Degree and stated that his medications were helpful in controlling his symptoms. Additionally, he reported that he had stopped working in 2008 because he was "having issues with my supervisor." With regard to his family and social relationships he felt his relationship with his wife was "better now, more good than bad." His relationship with his daughter and in-laws was going well. The examiner concluded that the Veteran's anxiety symptoms were reflective of 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 or symptoms controlled by medication. Furthermore, the TDIU assessment found that there were no psychological reasons for the Veteran not to be able to obtain or maintain employment secondary to his service-connected anxiety disability. The examiner reached his conclusion after reviewing the Veteran's military records, the claims file;, treatment records, clinical evaluation, and application of the DSM criteria. In November 2011, the Veteran submitted another Statement of Support reporting that his marriage was strained and he found it virtually impossible to trust authority. Therefore he was unable to secure employment since 2008. He stated that prior to service he had had many friends, but now he was unable to get along with people. He had attempted to start his own business but "even that is failing and I will soon have to close shop." A General Medical VA Examination in December 2011 found that the Veteran had no conditions that impacted his ability to work. See VA Examination (General Medical Exam) December 2011. Medical Treatment in June 2012 reflects that the Veteran's anxiety was under control and that after reducing the dosage of his medications he was experiencing less issues with a chronic motor tic. See Medical Treatment June 2004 to February 2014. Clinical observations in April 2013 annotated that the Veteran was appropriately dressed and groomed; pleasant; obese; made good eye contact; and was cooperative during the session. His neck tic was moderate along with his torso tic. Additionally, his affect was calm; speech was relevant; he was coherent and goal oriented with no evidence of psychotic thought or form; and he reported no suicidal or homicidal ideations. Id. Medical Treatment records from July 2014 to February 2017 show a gradual improvement in the Veteran's symptoms. In October 2015, the Veteran reported that he had mostly weaned himself off of Trazodone. He expressed a desire to decrease his medications and was in agreement with a trial wean off of Zoloft. Moreover, he had found part-time employment at a local university and was going for an interview in the hopes of securing full-time employment. There were no suicidal or homicidal ideations. His appearance was described as casually dressed with good grooming. Additionally, he was alert and oriented; pleasant and cooperative during the interview; making good eye contact, with normal rate of speech; and his content was logical and goal oriented. Lastly, there were several Statements of Support submitted by the Veteran's representative in a BVA Brief dated August 2011. The Veteran's girlfriend explained that he was anxious around crowds; occasionally blurted out things in conversations that were unrelated to topics than being discussed; had "OCD-like" behaviors with regard to checking to see if doors were locked; difficulty dealing with stress; difficulty sleeping; and a lack of concern about his appearance resulting in facial hair growth and "raggy t-shirts." His father also wrote a letter stating he visited with his son almost weekly and he had observed the Veteran being hypervigilant, stressed easily, forgetful and irritable. He also has observed the personal hygiene issues identified by the Veteran's girlfriend. Lastly, the Veteran wrote his own Statement of Support hat he continued to dislike crowds; felt the failure of his marriage was related to his inability to leave the house; and hypervigilance/startle response. He also indicated that he sometimes neglected his personal hygiene and had some memory problems. The Board acknowledges the symptoms shown in the clinical record and described in the lay evidence. However, the disability picture revealed in this case is deemed commensurate with the 30 percent rating already assigned. Indeed, the Board finds that the Veteran has not exhibited symptomatology warranting a rating in excess of 30 percent disabling. In this regard, the November 2011 VA examination found the Veteran's symptomatology reflected occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks during periods of significant stress or symptoms controlled by medication. Further, the descriptions of the Veteran during his treatment have been fairly consistent thoughtout the entirety of the treatment record. He is generally well groomed; alert and oriented; pleasant in his demeanor; and he actively participates in treatment sessions. There has also been no indication of suicidal or homicidal ideations. The Veteran has not exhibited symptomatology causing impairment equating to a 50 percent disability rating such as on-going panic attacks more than once a week; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships. To the contrary, although the Veteran has divorced he has found a new relationship that he describes as "being a lot more peaceful" than the relationship with his ex-wife. Moreover, he has continued with his educational goals and secured employment at the local University after having stated that he had problems securing employment. Lastly, he had weaned himself off of Trazodone and requested a decrease in his Zoloft medication, which indicates a reduction in the severity of his symptomatology. The Board recognizes the Veteran's assertions that his symptoms have increased and finds his statements competent and credible, along with the lay statements submitted on his behalf. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, in this particular instance the Board places greater weight on the objective medical findings gathered by clinicians with medical training and expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The weight of competent probative evidence shows that the Veteran's symptomatology reflects a frequency, severity, and duration more approximately commensurate with the criteria for a 30 percent disability rating. Again, the Veteran has not expressed suicidal intentions or plans. In addition, he has not expressed symptoms such as hallucinations or delusions. The symptoms that have been demonstrated do not impair him socially or occupationally to the extent contemplated by the next-higher 50 percent evaluation. Moreover, the evidence of record shows his symptoms have been of generally the same level of disability; therefore staged ratings are not necessary. See Fenderson, 12 Vet. App. At 126-127. In sum, the preponderance of evidence does not show a disability picture commensurate with the next higher 50 percent disability rating. Therefore, reasonable doubt does not arise, and the claim for an initial rating in excess of 30 percent for anxiety disorder NOS is denied. See 38 C.F.R. 4.130. TDIU The Board notes a written withdrawal for the TDIU claim was submitted in August 2015. However, in the BVA Brief submitted to the Board in August 2017 the representative lists TDIU as an issue. Additionally, the United States Court of Appeals for Veterans Claims (CAVC) has held that a TDIU claim is part and parcel of a claim for an increased rating; therefore the Board will address the merits of the issue. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Generally, to be eligible for a TDIU claim, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. § 3.340, 3.341, 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is 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). (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability in order to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). In the present case, service connection is in effect for anxiety disorder NOS. The Veteran's service-connected disabilities are anxiety disorder at 30 percent; irritable bowel syndrome at 30 percent; tinnitus at 10 percent; gastroesophageal reflux at 10 percent; right knee patellar tendinitis at 0 percent; left ear hearing loss at 0 percent disabling. His combined disability evaluation is 60 percent from February 17, 2017 and 40 percent prior to that date. Therefore, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) from February 17, 2017. Nevertheless, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the rating enumerated in 38 C.F.R. § 4.16(a), as here, an extra-schedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. §4.16(b). Here, the Veteran contends that his service-connected anxiety disorder NOS prevents him from securing or following a substantially gainful occupation. His application for TDIU VA Form 21-8940 reflects that he is high school graduate working on an Associate's Degree with a Commercial Driver's License (CDL). He last worked for an employer in 2008 and has been self-employed since April 2011. The BVA Brief filed by his representative contends that his employment form April 2011 to August 2015 as a computer technician was not substantially gainful employment due to the fact that the Veteran's earnings were less than the poverty threshold. See Veteran's BVA Brief August 2017. However, as noted on the Veteran's October 2011 TDIU application, this timeframe coincides with the period in which he was trying to open a business as a computer repair technician. See TDIU Application October 2011. At this juncture, the Veteran had not completed his Associate's Degree in Network Engineering and his military service was as a Field Artilleryman, thus he did not have formal training or certifications that would enable him to attract an array of potential clients. See DD214. The Board finds during the timeframe indicated in the BVA Brief any lack of substantially gainful employment was not related to service-connected disability but rather was due to circumstances, such as not yet having the credentials to earn the living he was seeking to establish. The Veteran has been afforded two separate VA examinations related to his TDIU claim. The first examination in November 2011 found there were no psychological reasons the Veteran would not be able to obtain or maintain employment secondary to his service-connected anxiety disability. The second examination in December 2011 also found the Veteran did not have any conditions that would impact his ability to work. Additionally, during treatment in October 2015, the Veteran reported that he had been hired by the local university on a part-time basis; however he was anticipating a job interview hoping for full-time employment. See Medical Treatment July 2014 to February 2017. In conjunction with being employed the Veteran has also decreased his reliance on medications. He had nearly weaned himself off Trazodone and inquired about decreasing his Zoloft regiment during treatment in October 2015. Id. The Board acknowledges the lay statements of record with regard to the Veteran's service-connected disabilities and their effects on his occupational functioning. The Board finds the Veteran and the statements provided by his supporters competent and credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, when weighing the multiple opinions from medical providers and the treatment records showing a reduction of his medication regime; the Board finds that the symptoms do not preclude gainful employment in this case. Again, the Veteran only meets the percentage thresholds under 38 C.F.R. § 4.16(a) from February 17, 2017. Prior to that time the Board is not able to award TDIU in the first instance. However, the Board must still determine whether referral for extraschedular consideration is appropriate. For the reasons already stated above, the Board does not find that the record sufficiently suggests that the Veteran's service-connected disabilities prior to February 17, 2017 precluded substantially gainful employment such as to require referral in this case. In sum, the evidence does not demonstrate that the Veteran's service-connected anxiety disability has rendered him unable to secure or follow a substantially gainful occupation throughout the period on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwisnki, 1 Vet. App. 49, 54-56 (1990). ORDER An initial rating in excess of 30 percent for anxiety disorder NOS is denied. Entitlement to TDIU is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs