Citation Nr: 20002806 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 12-16 642 DATE: January 14, 2020 ORDER For the entire period on appeal, beginning on May 12, 2009, a disability rating in excess of 70 percent for anxiety disorder is denied. For the entire period on appeal, beginning on May 12, 2009, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the statues and regulations governing the payment of compensation. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s anxiety disorder has caused occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. But throughout the period on appeal, it is as likely as not that his service-connected disabilities, so including but not limited to his anxiety disorder, have precluded him from obtaining and maintaining substantially gainful employment.   CONCLUSIONS OF LAW 1. The criteria are not met for a disability rating higher than 70 percent for the anxiety disorder at any time during the relevant period under consideration since May 12, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC/Code) 9413. 2. Resolving all reasonable doubt in the Veteran’s favor, however, the criteria are met for a TDIU since May 12, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to May 1971. These matters come before the Board of Veterans’ Appeals (Board/BVA) on appeal from May 2010 and April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2019, when the Board granted a 70 percent rating for the Veteran’s service-connected anxiety disorder for the entire initial period on appeal, that is, effectively since May 12, 2009. However, the Board determined the claim had to be remanded for further development before additionally addressing whether the Veteran is entitled to an even higher rating for his anxiety disorder (meaning a rating greater than 70 percent, i.e., a 100 percent schedular for this service-connected disability) and whether he is entitled to a TDIU. To this end, the Board directed that he undergo a VA compensation examination reassessing the severity of his anxiety disorder and for a clarifying opinion on the functional impairment attributable to his service-connected disabilities, so including when also considering the others, to in turn assist the Board in determining their impact on his employability and consequent entitlement to a TDIU. The Board pointed out that these claims are “inextricably intertwined”. There since has been the required substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board, consequently, is proceeding with its adjudication of this remaining portion of the Veteran’s appeal. 1. For the entire period on appeal, beginning on May 12, 2009, a disability rating in excess of 70 percent for the anxiety disorder is denied. Through his representative, the Veteran has contended that his anxiety disorder warrants a 70 percent disability rating (See January 2019 and May 2019 Correspondence from the Veteran’s representative). Although, as a result of the Board’s intervening March 2019 decision, the Veteran now has this 70 percent disability rating for his anxiety disorder and has effectively since May 12, 2009, so for the entirety of the initial rating period on appeal, the “maximum” possible schedular rating for an anxiety disorder under 38 C.F.R. § 4.130, DC 9413, is even higher – i.e., 100 percent. And the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained that receipt of a higher rating for a service-connected disability, but less than maximum possible rating, does not abrogate a pending appeal unless the appellant affirmatively indicates he is satisfied or content with the new rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Under the General Rating Formula for Mental Disorders, the criteria for a 100 percent rating (maximum possible) are 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; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9413. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation 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. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Turning now to consideration of the relevant medical and other evidence in this appeal, which includes VA treatment records, Social Security Administration (SSA) records, and private medical records, it supports finding that the Veteran’s anxiety disorder does not warrant a 100 percent disability rating. The Veteran’s private physician evaluated him in January 2019 and reported that the Veteran’s thoughts were logical and goal-directed. He did not engage in ruminative or morbid thinking. This private physician also noted that the Veteran did not hear expressions of delusional thinking nor did he find evidence that the Veteran was hallucinating. The Veteran also denied any then current suicidal ideation or plan. This commenting private physician surmised the Veteran’s symptoms were consistent with the 70 percent criteria under DC 9413, so commensurate with his existing rating for this service-connected disability. Following the Board’s March 2019 remand of this claim to have the Veteran undergo another VA compensation examination reassessing the severity of his anxiety disorder, an April 2019 VA mental health disorder evaluation confirmed that he had a “pretty good…very well” relationship with his wife. He also expressed that he converses with his children but do not visit them. As well, he reported being a member of a motorcycle club. The VA examiner observed the Veteran’s insight is fair as he understands he has a mental illness but does not always consider the outcome of his behavior or the choices he makes. His judgment was described as fair and he denied having any delusions, obsessions, or suicidal ideation.   For the entire period at issue since May 12, 2009, the Board has considered the Veteran’s symptoms, irrespective of whether they are specifically listed in the rating criteria and finds they do not rise to the level of severity required for a higher 100 percent rating. His speech has not been intermittently illogical, obscure, or irrelevant. He has not had spatial disorientation. He has not had an inability to maintain effective relationships. He has not had gross impairment in thought processes or communication. He has not had disorientation to time, person, place or situation. Although there have been occasions when he had to be reminded that he needed to address his personal appearance and hygiene, he has not had memory loss for names of close relatives, his own occupation or own name. In sum, there is no indication of total occupational and social impairment – instead, at most deficiencies in most areas, which his existing 70 percent rating contemplates. Thus, no higher rating is warranted. 2. For the entire period on appeal, beginning on May 12, 2009, entitlement to a TDIU is granted. The Veteran contends that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. The Board finds that the evidence is in relative equipoise concerning whether the Veteran’s service-connected disabilities render him unemployable. In this circumstance, this reasonable doubt is resolved in his favor and the claim granted. An award of a TDIU requires a Veteran be unable to obtain or maintain a substantially gainful occupation as a result of a service-connected disability(ies). For schedular consideration, a Veteran must meet one of the following conditions: 1) a single service-connected disability rated at 60 percent or more, or 2) at least one service-connected disability rated at 40 percent or more with an additional service-connected disability sufficient to bring the combined rating to 70 percent. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). See also Van Hoose v. Brown, 4 Vet. App. 361 (1993). For the purposes of calculating the 60 percent or 40 percent disability mentioned above, disabilities of one or both upper extremities or one or both lower extremities, including the bilateral factor, are considered one disability, so, too, are disabilities of common etiology or resulting from a single accident. As already discussed, the Veteran’s anxiety disorder has been rated as 70-percent disabling effectively since May 12, 2009. He also has other service-connected disabilities, however: 20 percent for type II diabetes mellitus effectively since August 7, 2009; 10 percent for chronic hoarseness associated with laryngeal malignancy, right vocal cord, effectively since June 1, 2014; 10 percent for hypothyroidism effectively since June 1, 2014; 0 percent for decreased sense of taste effectively since June 1, 2014; 0 percent for the laryngeal malignancy, right vocal cord, effectively since June 1, 2014; 0 percent for xerostomia (Dry Mouth) effectively since June 1, 2014; and 0 percent for dysphagia effectively since June 1, 2014. Consequently, his combined rating effectively since May 2009 has been 70 percent or greater, in turn meaning he meets the § 4.16(a) rating requirements for schedular consideration of a TDIU since then. This, in turn, means that since May 2009 he does not instead have to resort to requesting this benefit on an extra-schedular basis under the special provisions of § 4.16(b). The Board, therefore, turns next to considering whether these service-connected disabilities (so including, but not limited to, his anxiety disorder) have since May 12, 2009 precluded him from working in any substantially gainful (versus just marginal) capacity. Substantially gainful employment is defined as work that is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. §§ 4.16 (a), 4.18. The Veteran’s last reported earnings statement in 2008 from the SSA shows his income was below the poverty threshold.   The central inquiry then 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). In making this determination, consideration may be given to his level of education, special training, and previous work experience, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Prior to enlisting in the miliary, the Veteran attended some college classes but did not obtain a degree. He did, however, obtain a welding certificate and a Commercial Driver’s License (CDL). Since separating from service, he has worked as a bartender helper, assistant manager, manager, and owned his own welding company. Of record are two private supporting opinions concluding it is at least as likely as not the Veteran has been unable to secure and follow substantially gainful employment since 2008, when he last worked, owning to his service-connected anxiety disorder. During a January 2019 evaluation, a private psychologist opined that it is at least as likely as not that the Veteran is unable to secure and follow substantially gainful employment solely as a result of his service-connected anxiety disorder. This commenting private psychologist reasoned that, while employed, the Veteran continuously demonstrated irritable behavior, to include violent outbursts and difficulty interacting with others, particularly authority figures. He also reported difficulty with coworkers during an April 2019 VA examination. He explained that, while employed, he had difficulty getting along with people and “that’s why the welding and construction didn’t go so well.” He also reported receiving a few disciplinary actions (write-ups) due to his poor social interactions. In October 2019, a vocational rehabilitation counselor also opined that, due to his service-connected anxiety disorder alone, the Veteran is unable to meet the standard requirements of any occupation – including sedentary roles. During this evaluation, the Veteran reiterated the difficulties he had experienced while in an occupational environment. He reported difficulty interacting with customers due to increased anxiety and frustration. This private counselor reasoned that the Veteran’s anxiety disorder manifested in “a tendency to isolate, racing and intrusive thoughts, panic attacks, hypervigilance, impaired motivation…severe limitations in interacting with supervisors, coworkers, and the general public,” thereby rendering him unable to maintain any substantially gainful occupation in the field of work in which he had been previously employed. These private opinions are probative because they are based on review of the record (relevant evidence especially) and contain the required explanation or rationale for the conclusions. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board also has considered various VA psychologists’ opinions regarding the functional impairment attributable to the Veteran’s service-connected anxiety disorder, including in turn as relating to his employability. An April 2017 VA examiner opined that the Veteran's service-connected disability does not impact his ability to function in an occupational environment. This VA examiner reported that the Veteran believed that he had not been able to secure employment because employers hold his history of assault and batteries against him even though he believes he has no trouble managing his anger now. An April 2019 VA examiner opined that the Veteran's symptoms are relatively mild, are mostly related to post-military stressors, and fail to hinder his ability to seek, secure or maintain gainful employment which has been reiterated in the previous VA examination as well as SSA reports. The April 2019 VA examiner opined that, despite the Veteran’s age and extensive criminal history, he would thrive in a quiet, independent, slow-paced environment with a flexible work schedule. The VA examiner’s opinions against this TDIU claim are as probative, but not more probative, than the private opinions conversely supporting this claim.   According to the "benefit-of-the-doubt" rule, where, as here, there is "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). As such, in resolving this reasonable doubt of employability versus unemployability in the Veteran's favor, the Board finds that entitlement to a TDIU as of May 12, 2009, is warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.