Citation Nr: 21000672 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-13 665 DATE: January 5, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for acquired psychiatric disabilities, to include bipolar I disorder, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s service-connected psychiatric disorder, to include bipolar I disorder, is manifested by symptoms approximating occupational and social impairment, with deficiencies in most areas. 2. The Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an entitlement to a disability rating in excess of 70 percent for acquired psychiatric disabilities, to include bipolar I disorder, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9432. 2. The criteria for an entitlement to a total disability rating based on individual unemployability (TDIU) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1985 to April 1989, and from February 1991 to March 1991. The appeal comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge in September 2020, and the transcript is of record. Although additional evidence has been associated with the claims file since the issuance of the January 2017 Statement of the Case, the Veteran explicitly and clearly waived the RO’s initial consideration of such evidence during the September 2020 Board hearing. Since the September 2020 Board hearing, additional evidence has been associated with the Veteran’s claims file. While these additionally obtained records include VA outpatient treatment records from May 2020 to October 2020, for which no waiver has been obtained, as these records do not include any treatment for the Veteran’s mental health condition, the Board finds them not pertinent and no waiver is needed. In October 2020, the Veteran was provided a hearing loss/tinnitus exam, along with a statement as to the effect of these conditions on his ability to work. As a claim for an increase for hearing loss or tinnitus is not on appeal, that examination report is not relevant and no waiver is needed. As for the October 2020 VA TDIU statement, although relevant, the Board finds no waiver is needed, as there is no prejudice to the Veteran by the Board considering this evidence in the first instance since TDIU is being granted. The Board also notes that while RO has separately adjudicated TDIU (most recently in October 2020), the Board has taken a jurisdiction over TDIU, as discussed at the Board hearing, as it was reasonably raised as part of his increased rating claim for his psychiatric condition. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). It is therefore part and parcel of his appeal and no further action is needed on his part to appeal the RO’s denial of TDIU. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist or with the conduct of his Board hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). In deciding the Veteran’s claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. 1. Entitlement to a disability rating in excess of 70 percent for acquired psychiatric disabilities, to include bipolar I disorder The Veteran claims that he should be granted a 100 percent disability rating for his psychiatric condition, considering a March 2017 private DBQ examination/medical opinion. Additionally, he testified that he experiences manic episodes, which could last for a couple days, during which time he “cannot stay still and has to do whatever hits his mind next to do,” impairing his ability to concentrate for an extended period. He also testified that he manifests symptoms of sleep disturbances (resulting in his feeling sleepy and drowsy), explosive temper, paranoia/avoidance of crowds, and frequent depression (during which time he primarily stays in bed as he feels “so worn out”). He also added that his wife does most of the daily activities on behalf of him. The Veteran also testified that he had gotten in trouble multiple times due to his service-connected psychiatric conditions (ie. angry outburst, made a dent on the dock, hit a guy with a hammer). The Veteran has been in receipt of a 70 percent rating for his service-connected bipolar I disorder since December 6, 2010, under Diagnostic Code (DC) 9432. All psychiatric disabilities are evaluated together regardless of the diagnoses. Pertinent regulations for consideration were provided to the Veteran in the January 2017 Statement of the Case (SOC) and will not be repeated here in full. 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, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. After reviewing all records, the Board finds that the Veteran is not entitled to the next higher rating of 100 percent under DC 9432 throughout the appeal period. At no time during this period did the Veteran present symptoms comparable to gross impairment in thought processes or communication; grossly inappropriate behavior (see March 2020 DBQ examination, March 2017 DBQ examination, July 2015 VA examination, and August 2014 VA examination); persistent danger of hurting self or others (see March 2020 DBQ examination, although he reported he gets angry easily, he noted that he would never hurt anybody unless he was pushed to the corner and emphasized that he “is big on respect, and disrespect will piss me off; see also March 2017 DBQ examination (“persistent danger of hurting self or others” not checked off as one of the current symptoms); see also July 2015 VA examination, although he reported explosive behavior (“instantaneous rages”) and was noted to buy excessive guns and own 42 weapons, he denied any memory of him losing his temper and noted that there are [only] “certain things that “set him off”; while he was noted to have symptoms of quick anger and manic highs, he denied suicidal ideation and his exam was noted to be otherwise unremarkable; see also August 2014 VA examination, reported he carries a loaded weapon because he would react immediately if someone threatened him, but he also reported that he would never shoot anything and would not even kill a squirrel); and there is no evidence of persistent delusions or hallucinations; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. With regards to intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, with the exception of the March 2017 DBQ examination, he was consistently found not to present such symptom (see March 2020 DBQ examination, the examiner indicating he was casually dressed with adequate grooming and hygiene; although he testified that his wife does most of the daily chores, there is neither subjective nor objective evidence suggestive of intermittent inability to perform daily activities; see also August 2014 VA examination, “maintains own activities of daily living”; see also August 2015 VA examination). Furthermore, even acknowledging the fact that the March 2017 medical opinion provides that the Veteran suffers from “total social and occupational impairment” as a result of his service-connected physiatric condition, the symptoms that he manifested during that examination (besides “intermittent inability to perform activities of daily living”) only approximate that of the current 70 percent rating (ie. impaired impulse control, inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances). See March 2017 DBQ examination. Additionally, while he underwent multiple VA examinations throughout the appeal period, none of those examinations, to include a DBQ examination conducted subsequent to the March 2017 private DBQ examination, provide any indication of total social and occupational impairment (ie. see March 2020 DBQ examination, finding of “occupational and social impairment with reduced reliability and productivity”). The Board acknowledges the Veteran’s testimony that he has once gotten in trouble for stopping the truck in the road and getting out of the truck on a guy with a hammer. However, even taking into consideration this statement consistent with findings of anger outbursts and him having been disciplined at work, as discussed above, there is no indication that this rises to the level of persistent danger of hurting self or others. In addition, although the Board is cognizant of the Veteran’s statement that he mostly stays in bed when he gets depressed, it does not appear that such results in his intermittent inability to perform activities of daily living. In summary, his symptoms do not rise to the level of total occupational and social impairment of a 100 percent rating. As the evidence preponderates against the claim, the benefit of the doubt rule has no application. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) Initially, the Board finds that the Veteran meets the schedular basis as he has multiple service-connected disabilities, with at least one disability rated at 40 percent or more, with a combined rating of 70 percent or higher. Therefore, a TDIU is warranted if the evidence shows that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16(a), 4.19. After a full review of the record, the Board finds that this is the case here. While there are multiple VA 21-8940 forms, the Veteran consistently indicated that he last worked in 2010, due to his service-connected disabilities, and that he has not earned any income since. It appears his work experience is confined to that of full-time truck driver (21 years, from 1989-2010, for three different companies, according to the March 2017 private psychological evaluation) and then for a few months in 2010 as a laborer for a landscaping company. Since then, he was put on Social Security disability for a shoulder problem. He received education through 4 years of high school. The Veteran’s service-connected psychiatric condition results in various symptoms, to include irritability, explosive outbursts, and sleep deprivation, all of which impact his ability to carry out work similar to that of his past work experience as a truck driver. He states he has been disciplined at all of his workplaces (three truck driving companies) for his symptoms related to psychiatric condition. During the March 2017 private psychological evaluation, the Veteran reported that there is no way that he could work because he would go off on someone, and that he is able to get only about 3-5 hours of sleep per day while his primary task at issue is driving; and that during his current employment, he was “forced” by his employer to seek psychiatric treatment if he wanted to keep his job and that he was accused of creating a hostile work environment due to frequent verbal rages and explosive behavior. See also July 2015 VA examination (the Veteran reporting that he was disciplined for anger problems everywhere he worked). Moreover, review of the evidence further suggests that his other service-connected disabilities (hearing loss/tinnitus) also impact his ability to work. The October 2020 VA Individual Unemployment Statement indicates that the Veteran’s employability may be limited, as he may have trouble understanding speech, localizing sound, concentrating, and hearing warning signals due to hearing loss/tinnitus. Such symptoms would obviously interfere with working as a truck driver. See also November 2017 VA examination (his tinnitus causes dizziness sometimes and impacts his ability to concentrate). While it could perhaps be argued the Veteran retains the capacity to work in a different job, considering his service-connected conditions do not affect his physical ability to perform light duty work or a sedentary position, the psychiatric symptoms described in more detail above affect his ability to perform in any workplace, other than hypothetically one where he could work in a solitary environment. It strains credulity to imagine he would be able to obtain such a position or maintain a position similar to his last job, given his combined functional impairments. These profound functional impairments are compounded by the fact his work history consists of essentially one job, and that job required communication and stress management skills. The Veteran simply does not have the necessary training or background that would potentially allow him to obtain substantial gainful employment. Thus, the Board finds that his disabilities, as a whole, render him unable to work. Upon consideration and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran warrants entitlement to a TDIU. On balance, the evidence is at least in equipoise that the combined effects of the Veteran’s service-connected disabilities, have rendered him unable to secure and follow a substantially gainful occupation. Affording him the benefit of the doubt, entitlement to a TDIU on a schedular basis is granted. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.