Citation Nr: 20022404 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 13-13 735 DATE: March 31, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to October 2, 2010, in excess of 30 percent from October 2, 2010 to March 29, 2015 (exclusive of a temporary total rating assigned from October 30, 2014 to December 31, 2014), and in excess of 70 percent since March 30, 2015 for bipolar disorder with posttraumatic stress disorder and mood disorder (psychiatric disorder) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to March 30, 2015 is denied. FINDINGS OF FACT 1. During the period prior to October 2, 2010, the Veteran’s psychiatric disorder did not manifest to a degree that resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. During the periods between October 2, 2010 to October 30, 2014, and January 1, 2015 to March 29, 2015, the Veteran’s psychiatric disorder did not manifest to a degree that resulted in occupational and social impairment with reduced reliability and productivity. 3. During the period since March 30, 2015, the Veteran’s psychiatric disorder did not manifest to a degree that resulted in total occupational and social impairment. 4. The Veteran’s service-connected disabilities did not preclude him from obtaining and maintaining employment before March 30, 2015. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent prior to October 2, 2010, in excess of 30 percent from October 2, 2010 to March 29, 2015 (exclusive of a temporary total rating assigned from October 30, 2014 to December 31, 2014), and in excess of 70 percent since March 30, 2015 for the service-connected psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9432. 2. The criteria for TDIU for the period prior to March 30, 2015 have not been met. 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 served on active duty from November 2000 to June 2008, to include service in Southwest Asia. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from the rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded in July 2016 and has since been returned to the Board for appellate review. In April 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s psychiatric disorder is evaluated under Diagnostic Code 9432, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is 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 continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is warranted when there is 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted 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- and long-term memory such as, 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Veteran and his representative testified that as the Veteran was diagnosed with PTSD upon discharge from active duty, and although there was a worsening seen in the 2010 VA examination, as percentage was not indicated, the Veteran should have been given 70 percent rating uniformly prior to the most recent March 30, 2015 rating of 70 percent. For the reasons below, the Board determines that such rating is unwarranted. Period 1: Prior to October 2, 2010 The Veteran was afforded a VA general medical examination in May 2008, where he was found to have subjective complaints for anxiety and PTSD, but was objectively found to be alert, responsive, and talkative. The examiner observed no evidence of extreme psychological problems, and no evidence of suicidal ideation was noted. After a September 2008 VA examination, the examiner opined that the Veteran’s bipolar disorder symptoms tended to be mild and transient, occurring only at times when he inadvertently stops his medication or periods of significant stress. Mental status evaluation revealed no impairment in thought process or communication, no delusions or hallucinations, no memory problems, no sleep impairment, no impulse control issues, no obsessive or ritualistic behavior, and no suicidal or homicidal thoughts. The Veteran was oriented, had the ability to maintain hygiene and other activities of daily living, and demonstrated appropriate behavior. His speech was normal. There was no evidence of panic attacks. His symptoms were noted to be in remission on medication. He did still have some mild symptoms of anxiety The Veteran was afforded another VA examination in September 2009, and it was noted that there had been a remission of symptoms over the last year with the Veteran’s continued compliance with medication. Symptoms were controlled by medication, although depressed mood, fatigue, and concentration problems were still present, but mild. He was able to maintain activities of daily living, including personal hygiene. He was not observed to exhibit inappropriate behavior currently or over the past year. His thought processes and communication were not impaired, although the examiner did note some impairing in social functions due to self-isolation. His employment was noted to be impacted in the sense that although the Veteran generally maintained successful employment, he struggled with some triggering events and missed approximately 12 days of work in the year before due to lack of motivation to engage in work. Overall, the examiner determined the symptoms were mild and transient and only affected occupational tasks during periods of significant stress. The Veteran’s treatment records are not in significant conflict with the examination findings and do not suggest any greater impairment. For example, September 2008 VA treatment records reflect that the Veteran was alert, cooperative, fully oriented, with calm, pleasant, and appropriate affect. There were no indications of psychosis or organicity, and the Veteran denied hallucinations. The Veteran also noted rarely irritable mood, and no longer being depressed. He was noted to have good energy, concentration, and memory with interests maintained. The Veteran also denied any suicidal or homicidal ideation or plan. The treatment provider observed that judgment and insight felt to be adequate and had been doing well on current medication. In fact, the Veteran reported having a new job and stopping Seroquel and Ambien to assist with nighttime feedings of his newborn son. January 2009 and April 2009 treatment records reflect that although the Veteran did have some trouble sleeping, he had generally been doing well, with stable mood and positive attitude, controlled by proper medication. Based on the above, the Board finds that the Veteran’s psychiatric disorder has been manifested by no more than 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. The Veteran’s symptoms are largely controlled with medication, although at times he has some anxiety, a lack of motivation, depressed mood, fatigue, and concentration problems. VA examiners have described these symptoms as mild and opined that overall the symptoms are mild and transient, with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or if the Veteran inadvertently stops his medication. The evidence of record is against the assertion that the Veteran’s psychiatric disorder has more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas such as work, school, family, relations, judgment, thinking, or mood, or total occupational and social impairment during this period (the criterion for 30, 50, 70, or 100 percent total schedular rating under Diagnostic Code 9432). Period 2: From October 2, 2010 to March 29, 2015 The Veteran was afforded a VA examination in November 2010. A slight worsening of his conditions was noted since his last examination; mainly, the Veteran missed more work over the past year due to physical problems and anxiety. He had reported some mild depressive symptoms. The Veteran reported working full-time at a hospital since 2008. He occasionally had some mild interpersonal tensions on the job and could be slightly withdrawn. He reported decreased sleep, increased energy, goal-directed behavior, and impulsivity associated with excessive spending in the past. The Veteran reported that he chronically feels irritable and frustrated. He also reported that he does not like being in large crowds or at malls. He reports that he is frequently on edge, hypervigilant and checking the locks at his home. The Veteran reported chronic anxiety, but rare panic attacks. He denied obsessive compulsive symptoms. He denied active suicidal or homicidal ideation, plans, or history of attempts. He denied grossly inappropriate behavior and overt psychotic symptoms, auditory or visual hallucinations, other Schneiderian symptoms, or paranoia. The Veteran also reported intermittent flashbacks. On mental status evaluation, his speech was articulate. Thought processes were logical and goal oriented and motor functioning was grossly intact. He was estimated to have at least average intellect and to be a reasonable historian. There was a minor deficit of working memory. Orientation skills, math skills, long-term memory skills, short-term memory, attention and concentration, visual motor and visual spatial skills, organizational and planning skills, language and comprehension skills were otherwise grossly intact. Ultimately, the examiner opined that the Veteran’s psychiatric disorder symptoms required continuous medication and resulted in an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to signs and symptoms, but generally had satisfactory functioning with regard to routine behaviors, self-care, and normal conversation. A December 2014 treatment record reflects that the Veteran was neatly groomed, kept good eye contact, reporting a mood of being “less depressed,” having euthymic, and very pleasant affect. He was noted to have associations of flow of ideas appropriate for the topic and noted no delusions or hallucinations. His sensorium and cognitions were oriented with no difficulty in attention, concentration, or memory, and insight and judgment were noted as being within normal limits. While he did not answer his health buddy for 9 days between January 8, 2015 and January 15, 2015, he had no suicidal or homicidal ideations and otherwise reported no worsening of symptoms prior to October 2014. A February 2015 Social Security Administration (SSA) treatment record notes that the Veteran was provided psychotherapy and psychotropic medication management treatment. He was noted as being irritable and anxious most days, with frequent pacing. Concentration ability and energy level were reported by the Veteran as poor, with feelings of helplessness and hopelessness on most days. He denied thoughts of death, suicide, and homicide. The treatment provider noted on the Veteran’s mental status exam, that he had a neatly groomed appearance, good eye contact, with euthymic affect, being very attentive to his young child who was brought into the room. He was noted to have no unusual motor activity, with normal rate, flow, and volume in speech. His thought process was noted to be appropriate for the topic and exhibited no delusions or hallucinations. His sensorium and cognition were oriented with no difficulty in attention, concentration, or memory, and showed insight and judgment within normal limits. Based on the above, the Board finds that the Veteran’s psychiatric disorder has been manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. During this period, the Veteran’s speech was normal, he had rare panic attacks, and short and long-term memory were grossly intact. Attention, judgment, and thinking, were normal. Depression and anxiety were present but mild in degree. While the Veteran felt his concentration was poor at times, this was not observed on examination and he was able to graduate from school during this period. The VA examiner opined that the Veteran’s symptoms resulted in an occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to signs and symptoms, but generally had satisfactory functioning with regard to routine behaviors, self-care, and normal conversation. Later treatment records do not show a significant worsening after the 2010 examination until March 2015. The evidence of record is against the assertion that the Veteran’s psychiatric disorder has more nearly approximated occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas such as work, school, family, relations, judgment, thinking, or mood, or total occupational and social impairment during this period (the criterion for 50, 70, or 100 percent total schedular rating under Diagnostic Code 9432). Period 3: From March 30, 2015 The Veteran was afforded a VA examination in March 2015, where the Veteran’s symptoms were noted to result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. As multiple psychiatric diagnoses were comorbid and equally affected functioning, the examiner observed that it was not possible to differentiate what portion of the occupational and social impairment indicated was caused by each mental disorder. The Veteran was observed as having the following symptoms: depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, as well as difficulty in adapting to stressful circumstances, including work or a worklike setting. In addition, the Veteran was also observed to have hypomanic episodes. The Veteran was afforded another VA examination in May 2019, where the Veteran’s symptoms were noted to result in occupational and social impairment with reduced reliability and productivity. The Veteran was observed as having the following symptoms: depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The examiner commented that the Veteran was well groomed, had good eye contact, was pleasant and cooperative, and had a mildly anxious mood. His affect was noted as full; his thoughts were coherent and he was goal directed. He denied suicidal or homicidal ideation. His attention and concentration were noted as being good, with memory grossly intact. His insight and judgment were noted as being within normal limits. Treatment records are not in significant conflict with the examination findings and do not suggest any greater impairment. For example, October 2015 medical treatment records show that the Veteran, while continuing to have “ups and downs,” had reported a more consistent up than down. He also reported attending church, expanding his social circle. He was observed to be alert, attentive, and oriented. He was noted to have appropriate grooming, with cooperative and reasonable appearance and behavior. He had normal rate and rhythm of speech, with some restricted affect, and mildly depressed mood. He was not noted to have perceptual disturbance such as hallucinations or illusions, with normal and coherent thought process and association. His thought content was not noted as unusual. He reported no suicidal or violent ideation. He was observed to have fair insight, fair judgment, intact memory, and average fund of knowledge. Based on the above, the Board finds that the Veteran’s psychiatric disorder has been manifested by no more than occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In fact, as the May 2019 VA examination record indicates, the Veteran’s psychiatric disorder has now manifested by no more than occupational and social impairment with reduced reliability and productivity. While the Veteran has reported his marriage is rocky, he is married and living with his children. He also attends church. Thus, total social impairment is not demonstrated. Total occupational impairment is also not demonstrated. Notably, the evidence does not reflect 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. Again, both VA examiners opined that the overall level of impairment is less than total even when considering all relevant symptoms. The evidence of record is against the assertion that the Veteran’s psychiatric disorder has more nearly approximated total occupational and social impairment during this period (the criterion for 100 percent total schedular rating under Diagnostic Code 9434). TDIU for the period prior to March 30, 2015 The Veteran asserts that the Board should grant TDIU for the period prior to March 30, 2015, as he was unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. Ultimately, the Board finds that a TDIU is not warranted for the period prior to March 30, 2015 because the Veteran’s service-connected disabilities do not meet the requirements necessary for schedular TDIU, and because they are not shown to preclude him from all types of employment, including those consistent with his prior experience, education, and background. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). Here, the Veteran did not meet the threshold schedular disability percentage requirements for TDIU consideration as a result of his service-connected psychiatric disability, chronic low back strain with spasm, bilateral plantar fasciitis, migraine headaches, right trapezius spasm and cervical strain, and right knee strain prior to March 30, 2015, as no one disability was rated at 40 percent or higher. 38 C.F.R. § 4.16(a). Referral for extraschedular consideration for a TDIU by VA’s director of Compensation could be made if the evidence reflects the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board finds the Veteran’s service-connected disabilities do not precluded him from securing and following substantially gainful occupational employment. The Veteran worked as a mental health specialist in the Army. Post-service he worked as a social worker, mental health technician, psychiatric aid, parts delivery driver, lube technician, mechanic, and in sales. He completed four years of college and quit working full time in March 2015. See VA Forms 21-8940, submitted August 2014, November 2016, July 2018, November 2018. As discussed above, during the relevant period the Veteran’s psychiatric disorder was noted to result in at worst occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. After a May 2008 VA general medical examination, it was noted that the Veteran’s back and right knee strain were mild and his migraines were episodic. At the examination the Veteran reported mild headaches occurring at least every three months that are relieved with medication. During an October 2008 VA general medical examination it was noted that the Veteran had no problems with activities of daily living. His orthopedic problems caused some limitations, but he was able to stand or walk for 30 minutes at a time and sit for 180 minutes at a time. It was noted that he had no impairment due to his chronic low back pain, migraine headaches, plantar fasciitis, or knee disability. A September 2009 VA examination report indicated that the Veteran’s plantar fasciitis affected occupational activities in that he had decreased mobility, problems with lifting and carrying, and pain and decreased strength in the lower extremity. During November 2010 VA examinations, the Veteran reported that he was capable of doing his activities of daily living and that he currently performed his job tasks satisfactorily as a mental health tertiary care giver. While his cervical spine disability caused pain and flared up, he reported he was able to function in his job and only missed 2 days in the last year due to neck pain. The low back strain resulted in pain and the Veteran reported missing 6 days of work in the last year due to his back; he reported he was otherwise able to function in his job. His right knee disability resulted in pain and occasional buckling. He was able to function in his job but did miss 10 days of work in the past year due to the knee, most of that after a recent flare. Plantar fasciitis had caused him to leave work early one day in the past year; it did not inhibit his ability to function in his job. He had one incapacitating headache per year and had missed 3 to 4 days of work as a result of headaches in the past year. Overall, the Veteran is not precluded from employment as a result of his service-connected disabilities. His physical disabilities cause some restriction on prolonged walking, standing, and sitting. However, the Veteran has reported these disabilities do not cause him to be unable to function in his job. Indeed, the Veteran reports being employed into March 2015. He has reported increased absenteeism, but not to the extent that it affected his employment. Moreover, the Veteran is more than qualified for work that would not entail prolonged walking, standing, or sitting. He has a college degree and experience in a variety of positions including medical services, driving, sales, and automotive. Many of these types of work would not include prolonged standing, walking, or sitting. That is, he would be able to alternate positions and activities. These types of jobs would also provide for a salary above the poverty threshold. While the Board recognizes the Veteran also has a mental health disability, during this period he is not shown to have impairment that would preclude interaction with others, to include customers, coworkers, or supervisors, or otherwise preclude the types of employment for which he is qualified through education and experience. The Veteran has normal speech and communication abilities and examiners indicate at worst this disability results in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Based on all the evidence, the Board finds that the Veteran was not unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to March 30, 2015. Thus, a TDIU is not warranted during that period. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. J. Kim, 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.