Citation Nr: 20004859 Decision Date: 01/22/20 Archive Date: 01/21/20 DOCKET NO. 19-00 153 DATE: January 22, 2020 ORDER Entitlement to a rating of 100 percent for generalized anxiety disorder (GAD) is granted. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. During the entire appeal period, the Veteran’s GAD has been manifested by symptoms resulting in total occupational and social impairment. 2. Entitlement to a TDIU is moot by virtue of the 100-percent schedular rating assigned for GAD. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 100 percent for GAD has been approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400. 2. The claim for a TDIU is moot; and, therefore, there is no longer an issue of fact or law before the Board. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 2015 to May 2016. The Veteran filed his initial claim for compensation in November 2016 at which time he reported having posttraumatic stress disorder (PTSD), adjustment disorder with anxiety, and GAD. By rating decision dated February 12, 2017, service connection for GAD was established and a 70 percent rating assigned effective May 13, 2016. In September 2017, VA received new and material evidence that the Veteran had been evaluated by the Emergency Department (ED) and released because there were no signs of self-harm or overdose and was advised to return to the ED for any changes in behavior, thoughts of self-harm or harm to others. By rating decision dated December 6, 2017, the 70-percent rating was continued. In July 2018, VA received new and material evidence in the form of a letter “to whom it may concern” from a social worker who noted that the Veteran endorsed psychotic symptoms, that his behavior was bizarre, and that there were indications that delusions were present. By rating decision dated October 17, 2018, the 70-percent rating was continued. That same month, the Veteran appealed decision, and after issuance of the statement of the case (SOC), in December 2017, the Veteran perfected his appeal. The Board finds that there has been a continuous prosecution of the 70 percent rating assigned for the Veteran’s GAD since the Veteran filed his claim for service connection in November 2016. As such, as he Veteran is appealing the original assignment of a disability evaluation following an award of service connection for GAD, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). In October 2018, the Veteran and his attorney submitted a notice of disagreement (NOD) with respect the October 2018 rating decision that denied entitlement to a TDIU. Normally, under such circumstances, such matter must be remanded to the Agency of Original Jurisdiction (AOJ) for the issuance of a statement of the case (SOC). See, generally, Manlincon v. West, 12 Vet. App. 238 (1999). However, in this case, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran’s increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial rating in excess of 70 percent for generalized anxiety disorder (GAD) The Veteran contends that the symptoms associated with his service-connected GAD are more severely disabling than reflected by the currently assigned disability evaluation and warrant a higher rating; specifically, he contends that he is entitled to a 100-percent rating. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Board finds that it is important to note that during his active duty service, in addition to GAD, the Veteran had diagnoses of adjustment disorder with mixed anxiety and depressed mood as well as a personality disorder. The Veteran’s service treatment records indicate that in November 2015, the Veteran sought psychiatric treatment for problems with sleeping, anger concentration, and intimacy. In December 2015, the Veteran mentioned, but would not discuss, a history of child abuse for which he had been removed from his home as a child and placed in foster care for about one year. A treatment plan for anxiety and depression was formulated to improve focus, concentration, mood, and sex drive. The Veteran also had inpatient psychiatric treatment from January 24 to 26, 2016 for suicidal ideation with plan; he fashioned a noose out of a bed sheet and contemplated hanging himself in the context of the loss of his girlfriend who had left to go back to school and his anxiety symptoms. The Veteran stated he did not attribute his problems to his girlfriend leaving but instead blamed his problems on his medications and stated he was suffering from anxiety but was unable to identify any triggers. Post-hospitalization records indicate that the Veteran appeared to be a poor historian and did not have a good chronological grasp of his issues and placed blame for suicidal ideation solely on a medication regimen that he did not like. The Veteran continued to report issues with staying asleep, extreme nervousness, racing-mind, and trouble concentrating; he stated that he was often overwhelmed at his workplace. In February 2106, the Veteran reported that he felt that he had been was misunderstood about the event which led him to being hospitalized; he had been prescribed an antidepressant which almost instantly caused reactions. The Veteran reported that he started having thoughts of suicide without any intention to do it although he stated that he did tie a noose from a sheet like a head noose for hanging himself, but he had no intention of doing it. The Veteran stated that he believed that it was the medication making him have these thoughts because he had never had any thoughts, intentions, or plans of suicide before and that since he was off the medication, he was feeling well. In March 2016, the Veteran stated that his unit was initiating a Chapter 5-17 discharge, a discharge for physical or mental condition; however, the clinical psychologist noted that the Veteran had a reaction to a medication, rapidly cleared after discharge, that medication and has been stable, and that he was fully fit for duty with no restrictions since. The psychologist noted that no Chapter for “chronic” mental health issues was indicated at that time. A week later, that same psychologist conducted a command-directed mental status examination after which the Veteran was diagnosed as having dysthymic disorder. The psychologist remarked, In the Behavioral Health interview today, [the Veteran] displayed a normal emotional status. S[ervice member] convincingly described chronic mild depression. S[ervice member] convincingly denied any current intent to harm others. Chronic mild Depression symptoms exist since teenage years. Commander reported that S[ervice member] has one year time in service and has deployed 0 times. S[ervice member] is cleared from a behavioral health standpoint for administrative action by Command. This individual meets the retention standards prescribed in AR 40-501, and there is no psychiatric disease or defect that warrants disposition through medical channels. Service Member is cleared for any administrative action deemed appropriate by Command. With respect to medications, the Veteran had been prescribed trazodone as trial for sleep he did not like the way the medication made him feel and discontinued using. He was having some success with hydroxyzine but was unwilling to trial dose adjustment or change medication and believed that medications were causing increased anxiety. The Veteran was discharged from the Army prior to the expiration of his term of service pursuant to AR 635-200, Chapter 5-17, Other Designated Physical or Mental Conditions. It was noted that the reason for the action was that the Veteran had been diagnosed as having Dysthymic Disorder which was severe enough to interfere with the performance of his duty. Post-service private treatment records from July to November 2016 note diagnoses of adjustment disorder with anxiety and PTSD with no relevant information as to how these diagnoses were made. In December 2016, VA received evidence including an Employee Final Warning dated in October 2016 describing infraction of excessive tardiness, absenteeism, and poor communication; letters “to whom it may concern” from the office manager of the Veteran’s place of business regarding her interactions with him including incidents in November 2016 in which he appeared to be very overwhelmed with something, having a breakdown or an anxiety attack, and crying hysterically and December 2016 in which he was on his way to work crying hysterically. The Veteran underwent VA examination in December 2016 with a VA psychologist who diagnosed the Veteran as having GAD with intermittent depressed mood. The examiner noted that he was prescribed clonazepam and had been attending counseling until the clinic closed. The psychologist determined that the Veteran did not meet the DSM-5 criteria for PTSD. The psychologist found that the Veteran had occupational and social impairment with deficiencies in most areas and noted symptoms of depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, mild memory loss, difficulty understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. In a July 2018 letter, the Veteran’s private psychiatrist noted that the Veteran had been in his care since June 2018, that he had been diagnosed as having schizoaffective disorder, PTSD, GAD and severe major depressive disorder (MDD). The Veteran’s private psychiatrist also completed a PTSD Disability Benefits Questionnaire (DBQ) and noted two additional diagnoses of “Other problem related to employment” and “Relationship Distress with Spouse or Intimate Partner.” The psychiatrist noted that the Veteran could not hold a job, displayed inappropriate anger, and experienced inability to cope in social situations but also noted that it was unclear whether depression and anxiety were attributed to PTSD or primary diagnosis. The psychiatrist determined that the Veteran met the DSM-5 criteria for PTSD, found that the Veteran had occupational and social impairment with deficiencies in most areas and noted symptoms of depressed mood; anxiety; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; memory loss for names of close relatives, own occupation, or own name; flattened affect; abnormal speech; difficulty understanding complex commands; impaired judgment; disturbances of motivation and mood; inability to establish and maintain effective work and social relationships; difficulty adapting to stressful circumstances; suicidal ideation; impaired impulse control; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others. The Veteran underwent VA examination in October 2018 with a VA psychiatrist who diagnosed the Veteran as having anxiety disorder. The psychologist found that the Veteran had occupational and social impairment with reduced reliability and productivity and noted symptoms of depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and suicidal ideation. The examiner noted that the Veteran had been going to a civilian behavioral health clinic for a couple months. The examiner also noted, His outpatient records indicate additional psychiatric diagnoses, however there is no rationale for these diagnoses, and his mental status exam per their records is [within normal limits]. His outpatient therapist wrote a statement of his diagnoses and symptoms, however there is no evidence that these diagnoses are secondary to his time in service and/or a progression of his service-connected anxiety disorder. If new evidence arises, Veteran should be re-examined. In July 2019, a private psychologist completed A Mental Disorders (other than PTSD and Eating Disorders) DBQ and noted two diagnoses of schizoaffective disorder, depressive type and GAD. The psychologist noted that the symptom complex reflected both diagnoses and could not be substantially differentiated. The psychologist noted that the Veteran had total occupational and social impairment and noted symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss; difficulty understanding complex commands; impaired judgment; disturbances of motivation and mood; inability to establish and maintain effective work and social relationships; difficulty adapting to stressful circumstances; suicidal ideation; impaired impulse control; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. The Veteran underwent VA examination in October 2019 with a VA psychiatrist who diagnosed the Veteran as having adjustment disorder with anxiety. The psychologist found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation; reduced reliability and productivity and noted symptoms of depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; and suicidal ideation. The findings of record indicate that during the appeal period, the Veteran had symptoms matching the rating criteria for a 100-percent rating (persistent hallucinations, grossly inappropriate behavior, persistent danger of hurting himself and others, and an intermittent inability to perform activities of daily living). As noted above, the Veteran has been diagnosed as having additional psychiatric disorders. In this case, however, the evidence of record does not sufficiently distinguish the symptoms of these disorders form his service-connected GAD. The December 2016 VA psychologist diagnosed severe GAD with intermittent depressed mood; the Veteran’s private psychiatrist diagnosed depressive type schizoaffective disorder, PTSD, GAD and severe major depressive disorder (MDD) recurrent episode; the October 2017 VA psychiatrist diagnosed anxiety disorder; the Veteran’s private psychologist diagnosed schizoaffective disorder, depressive type and GAD; and the October 2019 VA psychiatrist diagnosed adjustment disorder with anxiety. The private psychologists noted that it was not possible to differentiate what symptoms are attributable to each diagnosis. Thus, the Board will attribute all of the Veteran’s psychiatric symptoms to his service-connected GAD. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Taking such evidence into account, the Board finds that the Veteran’s GAF reached the severity contemplated for the 100 percent rating. The Board notes that it appears that with the help of medication, Veteran’s psychiatric symptoms have fluctuated during the appeal period; and at times the severity of his psychiatric symptoms have decreased. Despite any perceived improvement in the Veteran’s psychiatric symptoms during the course of the appeal period, the Board finds that, at its worst, the psychological symptoms are of such frequency, severity, and duration to more closely approximate total occupational and social impairment. As a result, the evidence is at least in equipoise and the Board finds that the criteria for an initial disability rating of 100 percent for GAD are met. 2. Entitlement to a TDIU Pursuant to 38 C.F.R. § 3.340 (a), a total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). With regard to entitlement to TDIU, this benefit contemplates a schedular rating less than total for the disability or disabilities on which the TDIU would be based. See 38 C.F.R. § 4.16 (a). The Board nevertheless recognizes that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. See Bradley, 22 Vet. App. at 290-293. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Id. at 293. Here, the Veteran seeks entitlement to a TDIU based solely upon his service-connected psychiatric disability. See September 2017 Application for Increased Compensation based on Unemployability (VA Form 21-8940). Importantly, the Veteran does not contend that a TDIU is warranted based solely upon his service-connected disabilities apart from his psychiatric disorder (e.g. right hip disability, rated as 10 percent disabling (10 percent for strain and zero percent for hip flexion and limitation of rotation); right knee strain, rated as 10 percent disabling; and right quadricep tear, rated as 10 percent disabling). Accordingly, since the Veteran is entitled to a 100-percent rating for GAD on a schedular basis for the entire period under review, entitlement to TDIU is rendered moot. See Vettese v. Brown, 7 Vet. App. 31 (1994) (observing that a “claim for TDIU presupposes that the rating for the condition is less than 100 percent”); Holland v. Brown, 6 Vet. App. 443 (1994). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.