Citation Nr: 20003148 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 19-13 586 DATE: January 14, 2020 ORDER Entitlement to an increased disability rating of 70 percent, but not higher, for major depressive disorder with anxious distress (psychiatric disorder) from December 10, 2019 is granted. Entitlement to a disability rating in excess of 50 percent for a psychiatric disorder prior to December 10, 2019 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. It is at least as likely as not that from December 10, 2019, the Veteran’s psychiatric disorder manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. It is more likely than not that prior to December 10, 2019, the Veteran’s psychiatric disorder manifested as occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating of 70 percent, but not higher, for a psychiatric disorder have been met from December 10, 2019. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434, General Rating Formula for Mental Disorders 2. The criteria for entitlement to a disability rating in excess of 50 percent for a psychiatric disorder have not been met prior to December 10, 2019. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434, General Rating Formula for Mental Disorders REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to August 2000. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of August 2018 issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely filed his notice of disagreement (NOD) in November 2018. The RO issued a statement of the case (SOC) in April 2019 and the Veteran’s timely appeal to the Board followed in May 2019. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned VLJ was scheduled. 1. Entitlement to an increased disability rating for the Veteran’s psychiatric disorder. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s psychiatric disorder was rated as 30 percent disabling from September 2010 in a rating decision of March 2012, which subsequently became final. The rating decision on appeal increased the Veteran’s disability rating to 50 percent from July 2017. Under the General Rating Formula for Mental Disorders (General Rating Formula), the rating criteria are as follows: 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 function satisfactorily, with routine behavior, self-care, and conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions or recent events). Id. 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; 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; 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. A maximum 100 percent rating 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 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. The Board notes that the criteria listed in the General Rating Formula are neither individually dispositive nor collectively exhaustive. “[Any] suggestion that the Board [is] required… to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Instead, the Board must “assign an evaluation based on all the evidence of record that bears on occupational and social impairment[.]” 38 C.F.R. § 4.126. The Board further notes that “[different] examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked… It is the responsibility of the [Board] to interpret reports of examination in the light of the whole recorded history[.]” 38 C.F.R. § 4.2. The Veteran underwent VA examinations on this issue in August 2018 and December 2019. The August 2018 VA examiner noted that despite “a good relationship with family,” the Veteran had “poor working relationships… [and] describes having exacerbated depressive symptoms & increased irritability as a result of his physical [disabilities].” See August 2018 VA Examination at 1-2. “[Some] of his co-workers describe him as argumentative and ‘hard to deal with’ [and] [he] has begun to notice a decline in pro-social activity in the last several months due to his depression.” See id. at 8. The Board notes that the August 2018 VA examiner describes an episode in which the Veteran “recently [got] in a ‘fist fight’ with a co-worker[.]” As previously discussed above, the applicable 70 percent rating criteria include “impaired impulse control (such as unprovoked irritability with periods of violence)[.]” 38 C.F.R. § 4.130, Diagnostic Code 9434. However, the August 2018 VA examiner further notes that in this case, the co-worker had “provoked [the Veteran] and spit in his face[,]” suggesting that the resulting violence was not “unprovoked irritability” as contemplated by 38 C.F.R. § 4.130. The August 2018 VA examiner also noted that the Veteran “periodically experienced passive suicidal thoughts since being in the service; however, he has never seriously considered a plan or attempt.” See id. at 5 (emphasis added). The Board notes that demonstrating suicidal ideation for rating purposes does not require that the Veteran make definite plans for self-harm or execute such plans. Bankhead v. Shulkin, 29 Vet. App. 10, 20-21 (2017). However, the other evidence of record supports the conclusion that it is more likely than not that the rating period on appeal was not a period in which the Veteran’s psychiatric disorder manifested as suicidal ideation. See, e.g., December 2019 VA Medical Records at 96, 271, and 348 (denying suicidal ideation in January 2019 and for several years prior). The August 2018 VA examiner opined that the Veteran’s symptoms were best approximated by the 50 percent rating criteria. Because the August 2018 VA examiner’s report thoroughly reviews the Veteran’s social and medical history and is consistent with the other evidence of record, the Board assigns it substantial probative weight. The December 2019 VA examiner also opined that the Veteran’s symptoms were best approximated by the 50 percent rating criteria. However, the December 2019 VA examiner notes additional symptoms drawn from the 70 percent rating criteria, supporting the inference that the Veteran’s psychiatric disorder is growing progressively more severe. The December 2019 VA examiner did not explain how her conclusion that the Veteran’s overall level of impairment remained the same was consistent with her findings that he had developed additional symptoms. Accordingly, the Board assigns her examination report only limited probative weight. The December 2019 VA examiner noted that the Veteran “is constantly depressed and fatigued… [he] is irritable, experiences confusion and has trouble remembering things… [his] concentration is getting worse.” See December 2019 VA Examination Report at 11. The December 2019 VA examiner opined that the Veteran’s symptoms now included “near-continuous panic or depression affecting the ability to function independently, appropriately and effectively,” as well as “difficulty in establishing and maintaining effective work and social relationships” and “difficulty in adapting to stressful circumstances, including work or a work-like setting.” See id. at 7. No competent medical evidence of record evaluates the Veteran as having any of the symptoms listed under the criteria for a total schedular rating. The Board therefore finds that a total schedular rating is not warranted because the Veteran does not experience “total occupational and social impairment” as contemplated by the regulations. 38 C.F.R. § 4.130; 38 U.S.C. § 5107(b). Instead, the Board concludes that it is at least as likely as not that a rating of 70 percent, but not higher, is warranted for the Veteran’s psychiatric disorder from December 10, 2019, the earliest date from which the evidence of record supports the inference that his symptoms had increased in severity. Id. Because the schedular criteria for the Veteran’s psychiatric disorder adequately contemplate each of his symptoms, additional analysis of an extraschedular rating is not warranted. REASONS FOR REMAND 1. Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A claim for a TDIU is generally inferred wherever a veteran asserts that his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As discussed above, the August 2018 and December 2019 VA examination reports support the inference that the Veteran is currently employed. However, “marginal employment shall not be considered substantially gainful employment” for purposes of a TDIU. 38 C.F.R. § 4.16(a); see also Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016) (providing that “[it] is clear that the language of § 4.16(a) focuses on a veteran’s capabilities and not his employment status”). In this case, the evidence of record supports the inference that the Veteran experiences difficulties in his current employment due to his service-connected disabilities, to an extent that may render his current employment marginal in nature. See, e.g., August 2018 VA Examination Report at 5 (providing that the Veteran was “having various problems on the job due to the physical requirements of having to lift heavy equipment[,]” “taking a lot of leave from work because of his chronic physical pain and headaches[,]” and “had problems with not completing assignments”); see also December 2019 VA Examination Report at 4 (providing that the Veteran missed approximately 62 days of work between January and July 2019) and at 11 (providing that the Veteran now “calls in more than he goes in which makes it hard for him to make a living”). The Board considers this evidence sufficient to raise an inferred claim for a TDIU as contemplated by Rice. Accordingly, the Board finds it necessary to refer this case to the RO for a determination in the first instance. This matter is therefore REMANDED for the following action: 1. Provide the Veteran’s claims file, including a copy of this remand, to an appropriately-qualified examiner. The examiner shall review the claims file and provide an opinion as to the functional impact of the Veteran’s service-connected disabilities, in total, on his ability to obtain and maintain substantially gainful employment. 2. Determine whether the Veteran’s current employment is marginal or substantially gainful in nature. If necessary, obtain information concerning the Veteran’s leave and earnings from his employer. Subsequently, adjudicate the issue of entitlement to a TDIU based on all the evidence of record. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.