Citation Nr: 21061333 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 10-36 668 DATE: October 1, 2021 ORDER A 70 percent rating for anxiety reaction, effective December 11, 2008 is granted. A rating in excess of 70 percent for anxiety reaction from April 25, 2016 to July 11, 2017 is denied. An effective date of January 2, 2009, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Effective December 11, 2008, the evidence demonstrates that the Veteran's anxiety reaction has been productive of suicidal tendencies and occupational and social impairment with deficiencies in most areas; his anxiety reaction is not more nearly manifested by disability analogous to total occupational and social impairment. 2. From April 25, 2016 to July 11, 2017, the Veteran's anxiety reaction was not manifested by total occupational and social impairment. 3. From January 1, 2009, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to April 25, 2016, the criteria for a 70 percent disability evaluation for anxiety reaction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9400. 2. From April 25, 2016 to July 11, 2017 the criteria for a rating in excess of 70 percent for anxiety reaction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9400. 3. The criteria for entitlement to an effective date of January 2, 2009 for the grant of TDIU have been met. 28 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty in the United States Air Force from January 1971 to April 1974. In December 2018, the Board denied a rating in excess of 50 percent for anxiety prior to April 25, 2016, granted an effective date of April 25, 2016 for the grant of 70 percent for anxiety disorder; granted a 100 percent for anxiety disorder, effective July 11, 2017 and remanded entitlement to a TDIU prior to July 11, 2017. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to the October 2019 joint motion for partial remand (JMR), the Court vacated the Board's denial of a rating in excess of 50 percent for service-connected PTSD prior to April 25, 2016, in excess of 70 percent from April 25, 2016 to July 11, 2017. Following the Board's December 2018 remand, in a January 2021 rating decision, the RO granted entitlement to a TDIU effective June 7, 2012. Further, in a March 2021 rating decision, the RO granted an increased rating for the Veteran's peripheral neuropathy of his left upper extremity, which resulted in a combined 100 percent schedular rating, effective June 7, 2012. As the Board noted in December 2018, a request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice, 22 Vet. App. at 453-54. Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. As such, the Board will adjudicate whether a TDIU is warranted prior to June 7, 2012. 1. Entitlement to a rating in excess of 50 percent for anxiety reaction prior to April 25, 2016. The Veteran seeks a rating in excess of 50 percent for his service-connected anxiety reaction prior to April 25, 2016. The Veteran's psychiatric disability is rated at 50 percent from April 25, 2016 under 38 C.F.R. § 4.130, Diagnostic Code 9400 (the General Rating Formula for Mental Disorders (General Formula). Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when the evidence shows for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that 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. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400. The symptoms listed in General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather 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, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Veteran seek a rating in excess of 50 percent prior to April 25, 2016 for his anxiety reaction. At the April 2009 Mental examination, the Veteran reported history of suicidal ideation, to include a 1979 suicide attempt where he crashed his car and had a psychiatric hospitalization. See April 2009 Mental Disorders Examination; see also April 2012 Psychiatric Consultation; December 2016 Psychiatric Evaluation. The Veteran reported the use of antidepressants, anxiolytic, and hypnotic medications and was receiving treatment from private and VA providers. He reported sleeping problems with nightmares related to his military experiences since discharge from service, severe loss of interest on almost all activities on a daily basis, anger since discharge from service and severe isolation. The Veteran reported suicidal ideation. See April 2009 Mental Disorders Examination. At his January 2010 Mental Disorders examination, the Veteran reported the following symptoms: anger, ruminations, memories of his military tour in which he was attacked with a switch blade, flashbacks, low tolerance, restlessness and trouble sleeping. The Veteran's treatment included anti-psychotic anti-depressant and anti-anxiety medication. The Veteran denied suicidal and homicidal ideation. See January 2010 Mental Disorders Examination. The July 2015 mental disorder examiner summarized the Veteran's impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family, relations, judgment, thinking and/or mood. His symptoms included: depressed mood; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild-memory, such as forgetting names, directions or recent events; impairment of short and long term memory, for example, retention of only highly learned material while forgetting to complete tasks; flattened affect; difficulty understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; spatial orientation; persistent delusions or hallucinations; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene and disorientation to time or place. See July 2015 Mental Disorders DBQ. The Veteran's July 2021 private examine opined that since the Veteran returned from service, his psychiatric symptoms have progressed, and he has experienced paranoia, suicidal ideation, hopelessness, helplessness and despair. See July 2021 Private Psychiatry Report. The Veteran's spouse submitted a statement that between 1972 and 1992, she visited him, and he reported his attempt to "end it all" in a car accident. After the wed in 1993, he avoided friends and family, he started to drink to help him sleep. See March 2020 Buddy Statement. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's psychiatric disability warrants a 70 percent rating. In this regard, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). The Court specified that VA must not require "more than thought or thoughts to establish the symptom of suicidal ideation," and may not require that the Veteran have "been hospitalized or treated on an inpatient basis" to establish suicidal ideation because that "imposes a higher standard than the criteria in the Diagnostic Code for mental disorders." Bankhead, 29 Vet App. at 20. The evidence supports a finding that the Veteran's disability picture for anxiety disorder has more nearly approximated to occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood) for the appeal period. The Board finds that the preponderance of the evidence is against a finding that the Veteran's psychiatric disability shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not demonstrate 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. The Board acknowledges the endorsement of auditory hallucinations and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene and disorientation to time or place at July 2015 examination, but otherwise the Veteran has denied the presence of auditory or visual hallucinations and inability to perform activities of daily living. Therefore, there is no proof of grossly inappropriate behavior. In light of the foregoing, the Board finds that a rating in excess of 70 percent is not warranted. 2. Entitlement to a rating in excess of 70 percent from April 25, 2016 to July 11, 2017. The Veteran's anxiety reaction is rated at 70 percent from April 25, 2016 to July 11, 2017. The Veteran contends that his anxiety reaction is more severely disabling than the currently assigned rating and thus, he is entitled to a higher rating. See August 2021 Appellate Brief. The May 2016 Mental examiner summarized the Veteran's overall impairment as 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. The Veteran's symptoms included: anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent event and disturbances in mood and motivation. The VA examiner described the Veteran behaving properly, well-developed, appropriately dressed with adequate hygiene and cooperative. The Veteran's thought process was coherent and logical. There was no looseness of association and no evidence of disorganized speech. There was no evidence of delusions and no evidence of hallucinations, no phobias, no obsession, no panic attacks and no suicidal ideation. See May 2016 Mental Disorders DBQ. At the December 2016 psychiatric evaluation, the Veteran reported he cannot initiate social contact or participate in any group activities. He was able to travel alone but preferred to be accompanied. He did not visit friends or family. He stated, he did not argue or get irritated when he used his medication. He preferred being alone and would sometimes hide when visited. He indicated he could not tolerate situations that required completing tasks or making a decision. The examiner noted, the Veteran was appropriate in manner, established visual contact, presented with a friendly attitude and his language was coherent and relevant. The Veteran reported feeling anxious, depressed, and feeling worried and frustrated. He did not present homicidal nor suicidal ideation. His symptoms included anxiety, sadness and rage. See December 2016 Psychiatric Evaluation. At the February 2017 discharge summary note, the Veteran presented with depressive symptoms and anxiety symptoms. The Veteran reported periods of isolation, sadness, anhedonia, poor concentration, decreased energy and affected sleep. The Veteran clearly denied experiencing any suicidal ideations intentions or plans, denied homicidal ideations or audiovisual hallucinations. See February 2017 Psychiatry Outpatient Discharge Summary; see also November 2016 Psychiatry Note. The Board finds that the preponderance of the evidence is against a finding that the Veteran's anxiety reaction shows total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not demonstrate the Veteran has 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. In light of the foregoing, the Board finds that a rating in excess of 70 percent is not warranted. 3. Entitlement to TDIU prior to June 7, 2012. The Veteran is currently in receipt of entitlement to a TDIU from June 7, 2012 to July 10, 2017, due to a combined effect of his service-connected disabilities on his ability to obtain and maintain substantially gainful employment. The Board notes the Veteran is assigned a 100 percent disability rating for anxiety reaction, effective July 11, 2017. Therefore, the Board will address the period prior to the date of the grant of the TDIU and assignment of the 100 percent disability rating. For the reasons noted below, the Board finds that he is entitled to a TDIU, effective from January 2, 2009. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Here, the Veteran's service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16 (a). The Board that the Veteran's psychiatric disability is now evaluated as 70 percent disabling; service connection is also in effect for a skin disability during this period. The Veteran reported that he last worked January 1, 2009. See December 2017 VA 21-8940, Veterans Application for Increased Compensation Based in Unemployability. The Veteran meets the criteria for a TDIU on a schedular basis for the rating period beginning December 11, 2008. See 38 C.F.R. § 4.16 (a). The Veteran reports that he is unable to work due to a combination of his service-connected physical and mental disabilities. Id. The evidence of record shows the Veteran completed one year of college and training in fuel management cryogenics in 1971. In a January 2021 rating decision, the RO granted TDIU, with an effective date of June 7, 2012. The effective date was based on the Veteran having met the schedular criteria for a TDIU for his service-connected disabilities. In addition, following the RO's March 2021 rating decision that increased the rating for the Veteran's peripheral neuropathy of the left upper extremity, the Veteran's combined schedular rating increased to 100 percent, effective June 7, 2012. The Board finds that the evidence regarding the severity of the Veteran's service-connected disabilities, the Veteran's functional limitations due to his service-connected disabilities, his individual work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that the evidence shows that prior to June 7, 2012, he is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, a TDIU, effective January 2, 2009, is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.