Citation Nr: 21002417 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-53 661 DATE: January 13, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for mood disorder with mixed features is denied. Entitlement to an earlier effective date prior to April 20, 1995 for the grant of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 23, 2015, the evidence of record does not show that the Veteran has total occupational and social impairment due to his mood disorder with mixed features. 2. Prior to April 20, 1995, the Veteran was not precluded from securing and maintaining a substantially gainful occupation due to service-connected disability or disabilities. CONCLUSIONS OF LAW 1. The criterial for entitlement to an initial increased rating in excess of 70 percent for mood disorder, for the period prior to November 23, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 2. The criteria for entitlement to an effective date earlier than April 20, 1995 for the award of a TDIU rating have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Marine Corps from October 2002 to October 2006. The issues are on appeal from an April 2012 rating decision. In January 2019, the Veteran testified before the undersigned Veterans Law Judge. A transcript has been associated with the claims file. During the course of the appeal, the RO issued an August 2016 rating decision increasing the Veteran’s mood disorder with mixed features rating to 100 percent, effective November 23, 2015. As this increase did not represent a full grant of the benefits sought for the entire appeal period, the Veteran’s appeal has not been abrogated and the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant temporal 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. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial rating in excess of 70 percent for mood disorder with mixed features (mood disorder), prior to November 23, 2015 The Veteran’s service-connected mood disorder for the period prior to November 23, 2015 is rated at an initial 70 percent disabling, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9435. He contends his mood disorder warrants a higher disability rating. Under Diagnostic Code 9435, the rating criteria provides that a 70 percent evaluation 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; 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9435. A 100 percent evaluation 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 use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. 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. 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. Turning to the evidence, the Veteran reported that he has become too disabled to work due to his service-connected mood disorder since December 1992. The record shows that the Veteran was incarcerated in December 1992 and released in July 1993, and he has not worked since his release from incarceration. VA and private medical records show that the Veteran received psychiatric treatment for his diagnosed mood disorder with mixed features throughout the period on appeal. In July 1981, the Veteran was afforded a VA examination. He did not demonstrate a thought disorder, depression, anxiety, recent or remote memory issues, hallucinations, nor homicidal or suicidal intent. The Veteran was observed as well-oriented and alert, displayed normal intelligence, and had some impaired judgment which he partly related to his hatred and emotional anger towards the VA and federal government. The examiner opined he had no Axis I diagnosis and suffered from antisocial personality disorder as an Axis II diagnosis. A November 1995 mental status examination during a VA consult indicated the Veteran was normal except his judgment and insight were hampered due to his severe personality disorder. In June 1996, the Veteran underwent an additional VA examination. The Veteran displayed suspiciousness of others, paranoia, anger, impulsiveness, and guardedness; but was also pleasant, labile, and put forth adequate effort for an accurate assessment of his level of functioning. He reported living by himself and having no interpersonal interaction with others. His main problems due to his service-connected mood disorder were dealing with impulse control and anger. The examiner noted that the Veteran was an alert, oriented man of average psychometric intelligence, who showed superior language skills and solid average performance on nonverbal memory, visual and spatial, and perceptual/organizational tasks. His variability and inconsistent performance were noted in attention, thinking, reasoning and verbal memory. The examiner also noted that she was impressed with his dedication to pursuing college work and seeking assistance and benefits. A June 1997 mental health clinic initial treatment plan laid out needing to address and work on the Veteran’s mood instability, hopelessness, despair, social isolation, and concerns for the future. The Veteran was afforded an additional VA examination for his mood disorder in September 1997. The Veteran reported living with his son and the baby’s mother. He was unemployed and expressed guilt about living off of her income. He was described as pleasant and cooperative, with normal alertness and orientation. His mental status was unremarkable. The examiner noted the Veteran had serious psychiatric symptoms causing an inability to keep a job and difficulty with social relationships. The Veteran’s symptoms were observed as intact sensorium and memory; inactive suicidal or homicidal intent or plan; intelligence within the average range; and fair judgment and insight. The examiner also noted that the Veteran tended to be hostile and was easily aggravated with other people, provoking them to not take his side on many matters. VA Mental status examinations in March 1998 and April 1998 showed the Veteran dealt with anger, depression, poor impulse control, irritability while in groups, defensiveness and blaming others, poor social skill with isolating behaviors, and needing verbal cues to join a conversation. He was living alone but had a girlfriend. Importantly, an April 1998 VA consult from his treating psychiatrist indicated the Veteran continued to show much persistence and courage in the face adversity, and mood stabilization with medication. Notably, the Veteran discussed his social relationships in VA treatment notes from October 1999 to April – he had made contact with a good friend who would be good company for him and was irritated with his sister. The Veteran was evaluated in April 2000 for another VA examination. He reported poor sleep, waking up at different hours, having no close friends, and always feeling tired and irritable. The Veteran reported having poor relationships with his siblings; tending to avoid crowds; and did not feel safe in his current housing but could not move elsewhere. He reported constantly feeling on the brink of crying. The April 2000 examiner described the Veteran as relatively cooperative but somewhat anxious and suspicious with no evidence of psychotic thought, mood, or perceptual disorder. Sensorium and memory were grossly intact, and he displayed no suicidal or homicidal intent. The Veteran was of average intelligence. He demonstrated fair judgment and insight. The examiner noted that the Veteran had some difficulty with irritability prior to enlistment but it was fairly clear that since then, the Veteran had the ability to manage his moods while also suffering from impaired impulses. The Veteran reported to a VA psychiatrist that he was fearful of making new connections and relationships as most of his had gone sour and made him feel very disappointed in April 2001. In July 2002, the Veteran underwent a medical assessment of his ability to do work-related activities. He was found incapable of understanding and carrying out complex instructions; carrying out detailed but not complex instructions; and carrying out simple job instructions. The evaluator noted that while he could understand some instructions, he could not constantly execute because of bouts of depression and physical pain. The Veteran was also described as good at maintaining personal appearance, but poor at behaving in an emotionally stable manner and relating predictably in social situations. VA treatment notes from July 2002 to April 2004 show the Veteran was a member of Jehovah’s Witnesses. The Veteran was awarded Social Security Disability in October 2002 and although the additional money would alleviate some of his financial pressure, the Veteran remained labile with moodiness and some irritability. In a September 2003 consult, the Veteran stated that his relationship with his brother had improved and the brother was planning on giving the Veteran a car. The Veteran was afforded a VA examination in April 2004. He reported that he maintained close contact and was in a relationship with the mother of his son but did not live with them. The Veteran explained that he felt great concern for them and expressed frustration over not being able to better provide for them. As for leisure or recreational activities, he watched sports on television. The Veteran reported that he had no other friends, did not belong to any social organizations, and had quit going to church. The Veteran attended the appointment well-dressed and groomed, displayed a neutral mood with congruent affect, and did not appear to manifest any odd movements. His eye contact and speech were appropriate. The Veteran’s thought processes were logical and linear. Importantly, there was no evidence of any current hallucinations, delusions, or illusions. The examiner opined that the Veteran’s mood disorder, hypersomnolence, and neurocognitive disorder (memory and attention problems) would likely interfere with employment. The Veteran had a minimal social support system in a heterosexual relationship of long-standing that produced a child. His thought processes were logical and linear, and he displayed a degree of mental flexibility and even insight. The examiner explained that the Veteran’s mood disorder and neurocognitive disorder would likely interfere with occupational functioning. However, the Veteran would possibly function well in a highly structured situation such as a structured workshop. An April 2004 VA treatment note shows the Veteran’s mood disorder caused symptoms such as jumpiness, distrust, depression, rage attacks, impulsivity, poor concentration, and amnesia for events surrounding a traumatic accident during active duty. He was described as stable on existing psychotropics. VA treatment notes from April 2004 to November 2015 show the Veteran complaining of ongoing struggles with his family members. However, he gained awareness from his therapy sessions that he needed to set boundaries with them. The Veteran showed that he was capable of such execution. The Veteran was also an active member of Jehovah’s Witnesses and pursued spiritual practices when he was frustrated. The Veteran was observed continuing to find time for self-care activities such as watching football, dieting, and exercising. During this time period, his mood ranged from bright to frustrated. He displayed no suicidal intent and admitted to sometimes experiencing homicidal intent without intent – he focused on reasons not to act out during these latter spurts. Importantly, his mood was described as stable throughout the duration of the VA treatment notes. The Veteran reported that he worked with young African-American males in the ghetto in November 2004 but the treatment note did not expand on how. In March 2016, the Veteran submitted a VA 21-8940 Application for Increased Compensation Based on Unemployability. He reported that he had worked in landscaping at his brother’s OB-GYN practice from November 1987 to December 1992 and the Holiday Inn as a dishwasher from August 1992 to December 1992. The Veteran stated that he stopped working due to his service-connected disabilities and that he had not tried to obtain employment since. The Veteran had 12 years of education and no additional training. Based on the above, the Board finds that the service-connected mood disorder did not amount to total occupational and social impairment for the period prior to November 23, 2015, as needed for the next higher rating of 100 percent disabling. The Veteran was always described as well-dressed and appropriately groomed. The Veteran’s mood disorder sometimes caused him anxiety, depression, impaired insight and judgment, having impulse control, reacting predictably in social situations, and inability to control his rage. However, starting in April 2004, the Veteran’s mood was consistently described as stable due to his psychotropic medications. The Veteran showed that he was capable of social relationships. He maintained a relationship with his siblings – his brothers even created a job for him. The Veteran met and married his wife and the mother of his son. He expressed worry and care for his family. Furthermore, the Veteran became active in Jehovah’s Witnesses during the appeal period, noting the benefits of spiritual practices and group worship to his life. Importantly, VA examiners did not opine that the Veteran was incapable of employment. Rather, one noted that he could potentially benefit from a structured work environment. Several VA examiners and treating psychiatrists noted admiration for the Veteran’s superior language skills and determination to pursue college courses while incarcerated. The Veteran’s memory was described as intact. He did not suffer from suicidal intent or hallucinations. The Board acknowledges the July 2002 medical assessment of the Veteran’s ability to work where the evaluator explained that while the Veteran could understand some instructions, he could not constantly execute because of bouts of depression and physical pain. However, the evaluator’s notation that he could not constantly execute indicates that at some times, the Veteran could execute, thus not fulfilling the requirement of “total occupational impairment” as required for the rating of 100 percent disabling. Finally, based on his VA 21-8940, the Veteran was capable of maintaining employment at the Holiday Inn from August 1992 to December 1992. His work was discontinued not because of his service-connected disabilities but because he was incarcerated in December 1992. Furthermore, in November 2004, the Veteran stated he was working with African-American youth in the ghetto. Consequently, the Board finds that the Veteran’s entitlement to an initial rating in excess of 70 percent for mood disorder, prior to November 23, 2015 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. Earlier Effective Date As a general matter, a TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. 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). Consideration may be given to a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363 2. Entitlement to an earlier effective date than April 20, 1995 for the grant of a TDIU The Veteran contends that an effective date prior to April 20, 1995 is warranted for the grant of a TDIU. Specifically, his representative contends that an effective date of June 1, 1987 is warranted for the grant of a TDIU. As the Veteran’s representative acknowledges, the Veteran was incarcerated from December 1992 to July 1993, and thus, is asking for a reduction of eight months of a TDIU with the earlier effective date. The Board notes that the Veteran was also incarcerated from May 1977 to June 1987 and was subsequently in parole. Briefly reviewing the procedural history, the Veteran claimed a TDIU in March 1996 and the RO denied the claim in an April 1996 rating decision. The Veteran did not appeal the April 1996 rating decision, and thus, the decision is final. In a May 2004 rating decision, the RO granted service connection for several disabilities including mood disorder, at 70 percent disabling, effective April 20, 1995. As a result, the Veteran established the necessary disability eligibility requirements for a TDIU, as of April 20, 1995. However, the RO still denied entitlement to a TDIU in the May 2004 rating decision because the Veteran’s medical records revealed the Veteran’s service-connected disabilities were not so severe to render him unable to secure or follow substantial gainful employment. Again, the Veteran did not appeal the denial of entitlement to a TDIU in the May 2004 rating decision, and therefore, the decision is final. However, the Veteran did timely appeal for an earlier effective date of October 14, 1976 for the grant of service connection of mood disorder. The Board granted an earlier effective date of October 14, 1976 for the grant of service connection of mood disorder in a February 2012 decision. Therefore, the Veteran may be assigned an effective date for a TDIU as early as October 14, 1976. However, as the Veteran was incarcerated until June 1, 1987, that is the earliest effective date for a TDIU in this case. In an April 2012 rating decision, the RO denied the earlier effective date for entitlement to a TDIU because the Veteran’s claims file lacked confirmation of when his service-connected mood disorder symptoms first caused his unemployment. In an August 2020 supplemental statement of the case, the RO continued its denial of an earlier effective date for the grant of a TDIU because the evidence showed the Veteran had stopped working due to incarceration, not his service-connected disabilities. Prior to April 20, 1995, the Veteran is service-connected for mood disorder at 70 percent disabling, effective October 14, 1976; and right acromioclavicular joint at 10 percent disabling, effective October 14, 1976. His combined evaluation is 70 percent disabling for this appeal period. Thus, the Veteran met the criteria for establishing entitlement to a TDIU on a schedular basis for the appeal period prior to April 20, 1995. See 38 C.F.R. § 4.16(a). The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against an earlier effective date for a TDIU prior to April 20, 1995. VA and private medical records from June 1, 1987 to April 20, 1995 demonstrate the Veteran complained of mood disorder and right shoulder disability symptoms. Mood disorder symptoms included suspiciousness, anger, impulsiveness, and occasionally hampered insight and judgment. Right shoulder disability symptoms manifested as reduced strength, limited range of motion, joint pain, and swelling. In January 1989, the Veteran reported that he was unable to do push-ups because of his right shoulder and that he was not working at present. His right shoulder demonstrated full flexion and extension, with slightly decreased external rotation. An April 1994 VA examination of his right shoulder revealed limited range of motion. The examiner noted that the Veteran somewhat guarded the motion of his right arm when dressing and undressing, but he had no difficulty removing his upper clothing. In March 2016, the Veteran submitted a VA 21-8940 Application for Increased Compensation Based on Unemployability. He reported that he had worked in landscaping at his brother’s OB-GYN practice from November 1987 to December 1992 and the Holiday Inn as a dishwasher from August 1992 to December 1992. The Veteran stated that he stopped working due to his service-connected disabilities and that he had not tried to obtain employment since. The Veteran had 12 years of education and no additional training. The Veteran’s second brother, H.E., submitted a statement expanding on the work that the Veteran did for their brother, the OB-GYN, Dr. J.M.E. As the Veteran needed an income to sustain himself and was not employable elsewhere, H.E. created a position where the Veteran took inventory and did maintenance, secretarial and administrative tasks, ran errands, and ordered supplies. At this time, H.E. served as the lead administrator and had the power to create a position for the Veteran, and wrote that had the Veteran not been family, he would not have been qualified nor hired by H.E. During the Veteran’s employment from late 1987 to mid-1992, he was described as often absent and tardy, complained of headaches and vision issues. With these issues, H.E. stated that the Veteran would not have lasted more than a week in a position that was not protected by his family. Ultimately, the Veteran was terminated because his tardiness and absences had progressed to an irreconcilable extent. Based on the evidence, the Board finds that an earlier effective date for the grant of a TDIU prior to April 20, 1995 is not warranted. The Board finds that the preponderance of the evidence is against a finding that the Veteran was unable to follow or secure substantially gainful employment due to service-connected disabilities. The Veteran was employed until December 1992, working as a dishwasher at the Holiday Inn. As noted by the affidavit, the Veteran was incarcerated starting in December 1992. The evidence does not suggest that the Veteran was rendered unemployable in December 1992 because of his service-connected disabilities, but solely because of the incarceration period starting in December 1992. The Board acknowledges H.E’s statement that the Veteran was employed under a protected environment, as the Veteran would not have been hired nor maintained employment from late 1987 to the mid-1992 had he not been a family member, H.E. wrote that the Veteran was eventually terminated because of his habitual and excessive tardiness and absences due to his headaches and vision issues. For the period on appeal, the Veteran was not service-connected for headaches nor vision issues. In reaching this decision, the Board considered the benefit-of-the-doubt rule. However, as the preponderance of the evidence is against the appellant’s claim, such rule is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. 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.