Citation Nr: 21062167 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-38 862 DATE: October 6, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for an acquired psychiatric disorder prior to November 12, 2018 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to November 12, 2018, the Veteran's service-connected psychiatric disorder did not manifest in total occupational and social impairment. 2. Prior to November 12, 2018, the Veteran's service-connected acquired psychiatric disorder has prevented her from maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 70 percent for an acquired psychiatric disorder prior to November 12, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU based upon an acquired psychiatric disorder alone, from May 29, 2012 to November 12, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded this matter for further development. That development having been completed, this matter has returned to the Board for further appellate review. The Veteran initially filed for TDIU in October 2016. The Board notes, however, that "a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities." Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). "When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability." Id. at 454. In her November 2013 notice of disagreement (NOD), the Veteran stated that she either ends up quitting or gets fired from her previous jobs due to her depression. See November 2013 NOD. Accordingly, the claim of entitlement to a TDIU is part of the Veteran's claim of entitlement to an increased disability rating. A July 2020 rating decision granted the veteran an increased, 100 percent, rating for her acquired psychiatric disorder. This represents a full grant of the benefit sought, therefore the issue of entitlement to an increased rating from November 12, 2018, forward, is no longer on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). The Board has considered the Veteran's claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 1. Increased Rating VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id. The Schedule assigns Diagnostic Codes to individual disabilities. Diagnostic Codes provide rating criteria specific to a particular disability. If two Diagnostic Codes are applicable to the same disability, the Diagnostic Code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different Diagnostic Codes-a practice known as pyramiding-is prohibited. Id.; see 38 C.F.R. § 4.14. In disability rating cases, VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board notes that the Veteran was initially service-connected under the diagnosis of depression not otherwise specified (NOS). See August 2013 Rating Decision. Throughout the appeal period, the Veteran's diagnosis has been updated to include posttraumatic stress disorder (PTSD), major depressive disorder, and generalized anxiety disorder. Accordingly, the Board will refer to the Veteran's service-connected condition as an acquired psychiatric disorder. The Veteran's acquired psychiatric disorder is evaluated as 70 percent disabling from May 29, 2012 to November 12, 2018 under 38 C.F.R. § 4.130, DC 9411. In pertinent part, a 70 percent rating is warranted where there is 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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the VA's general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). An October 2012 VA examination report reflected that the Veteran was experiencing periods of difficulty sleeping, with low energy and motivation, and uneven concentration and attention, lasting up to six months. She denied suicidal ideation or attempts. The examiner noted her symptoms consisted of depressed mood; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; flattened affect; disturbances of motivation or mood; difficulty in establishing effective relationships; and difficulty in adapting to stressful circumstances. See October 2012 Mental Disorders Disability Benefits Questionnaire (DBQ). An August 2013 VA examination report noted the Veteran's symptoms consisted of depressed mood; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and suicidal ideation. The Veteran reported chronic insomnia and periods of under- and over-eating. She further reported angering easily and blowing up at small provocations with thoughts of hitting the people who make her angry. She stated she is tearful for a couple of hours every day and the thought of suicide is always at the back of her mind, although she would not attempt it due to her daughter. See August 2013 Mental Disorders DBQ. In her November 2013 NOD, the Veteran stated that every day is a struggle for her, that she has thoughts of hurting others and impulses she cannot control. She reported losing every job she has had due to her depression. She also stated that she has no desire to socialize and isolates herself. She expressed feelings of hopelessness, that her life is meaningless, and she would have taken her life if it was not for her daughter. See November 2013 NOD. VA treatment record from December 2013 to March 2016 reflect the Veteran experienced constant anxiety and depression, periods of hopelessness, irritability, anger, and mood swings. She had consistent trouble sleeping and reported obtaining, and subsequently losing, multiple jobs due to her anxiety. Her energy and motivation were low, and she expressed experiencing little to no enjoyment. The Veteran was consistently noted as being clean and well-groomed, with casual attire, good eye contact, normal speech, normal thought process and content, and good judgment and insight. She had one instance of suicidal ideation, which lasted for a couple of hours before it passed. See VA Treatment Records dated December 31, 2013; February 4, 2014; April 16, 2014; May 6, 2014; August 13, 2014; September 17, 2014; March 13, 2015; May 5, 2015; June 23, 2015; August 10, 2015; October 8, 2015; December 15, 2015; and March 21, 2016. At a June 2016 VA examination, the Veteran reported struggling with her depression and isolating herself for several years. She stated she does not have any friends, does not answer the phone, and stays away from people. Her anger and anxiety were noted as worsening. She stated that she has worked in the past, holding multiple jobs for up to six months, but she loses motivation and her anxiety causes her to quit or get fired. The examiner noted her symptoms consisted of anxiety; depressed mood; suspiciousness; weekly or less panic; sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective relationships; difficulty in adapting to stressful circumstances; impaired impulse control; neglect of personal appearance. At the examination, the Veteran was recorded as on-time and appropriately dressed. Her judgment and insight were impaired, but her capacity for good judgment and insight was intact. See June 2016 Mental Disorders DBQ. In the Veteran's substantive appeal to the Board, she stated her thought processes and communication was impaired, that she was unable to make decisions or concentrate. She also stated that she would experience panic attacks and anxiety attacks anytime she did work. The Veteran reported having no motivation in her life, and that she goes days without showering and has to force herself to brush her teeth. She also reporting being unable to get her daughter ready for school. She stated she is extremely overwhelmed and is unable to control her anger, going so far as assaulting someone recently. She reported constant thoughts of hurting others and constant feelings of anger, irritation, and depression. The Veteran stated she has an emotional attachment to her daughter's teddy bear, that she talks to it daily and thinks it is the only one who cares about her and that she can trust. See September 2016 VA Form 9. VA treatment records of August 2016 and November 2016 reflect that the Veteran had recently moved to California. She reported being angry and irritable since that move. She also reported getting easily frustrated, with increased anxiety and depression. See August 2016 Mental Health Note; November 2016 Mental Health Note. At a November 2018 VA examination, the examiner found the Veteran's symptoms consisted of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control; grossly inappropriate behavior; and intermittent inability to perform activities of daily living. The Veteran reported having ten to fifteen jobs since 2007. She stated that at each job she would lose interest, get depressed, and quit. She also reported chronic insomnia which led to her feeling tired all of the time. The Veteran stated that she angers easily and is unable to relax. She further reported isolating herself, hypervigilance, irritability, guilt, shame, numbness, tearfulness, always being on guard, being unable to relax, having impulse control issues, constant fear, avoidance, reliving, and flashbacks. See November 2018 Initial PTSD DBQ. Evaluating the evidence of record, the Board finds that, prior to November 12, 2018, the frequency, severity, and duration of the Veteran's reported psychiatric symptomatology has not more nearly approximated total occupational and social impairment. Here, the Veteran has not manifested the symptoms listed in the criteria for a 100 percent rating, and the psychiatric symptoms she has manifested do not manifest with such severity, frequency, and duration so as to preclude total social and occupational functioning. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013); see also 38 C.F.R. § 4.130, Diagnostic Code 9411. Rather, the clinical findings consistently show that the Veteran's thought processes and communication were normal, that she did not have persistent delusions or hallucinations, was oriented, that she was appropriately dressed and groomed, and that her memory was intact. Alternatively, the evidence reflects that the Veteran's acquired psychiatric disorder has not caused total social impairment, as she has maintained some social relationships, including with her daughter, and she has been noted to be generally self-sufficient, cooperative, and exhibiting normal communication by VA examiners and health care providers. See 38 C.F.R. § 4.130. Accordingly, the criteria for a 100 percent rating have not been satisfied or approximated prior to November 12, 2018. Id. In sum, the Board finds that the probative medical and lay evidence establishes that, prior to November 12, 2018, the Veteran's psychiatric disorder has been productive of symptoms including anxiety and depression, suicidal ideation, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that these psychiatric symptoms and manifestations, coupled with her additional documented symptoms including isolating behaviors and decreased motivation and mood, most closely approximate occupational and social impairment with deficiencies in most areas. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411; see also Mauerhan, 16 Vet. App. 436 (holding that, for the Board to assign a specific rating, it need not find all or even some of the symptoms present; rather, it only need find that the functional effect of the symptomatology justifies a particular rating). The evidence has not shown symptoms of 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; or other symptoms of similar severity. Accordingly, the probative evidence shows the Veteran's disability does not meet the criteria for a higher, 100 percent, rating for an acquired psychiatric disorder. See 38 C.F.R. § 4.130, Diagnostic Code 9411. As the preponderance of the evidence is against entitlement to a rating in excess of 70 percent prior to November 12, 2018, the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, this disability shall be ratable at 60 percent or more, and that, 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 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). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran has been service-connected for an acquired psychiatric disorder, rated as 70 percent disabling, from May 29, 2012 to November 12, 2018. Based on her service-connected psychiatric disorder alone, the Veteran's claim for TDIU may be adjudicated on a schedular basis. See 38 C.F.R. §§ 4.16(a), 4.25; Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Here, the evidence demonstrates that the Veteran's service-connected psychiatric disorder has rendered her unable to secure or follow a substantially gainful occupation. In her most recent application for TDIU, the Veteran indicated that she became too disabled to work in June 2010. She stated that she completed four years of high school and last worked in sales. Her previous periods of employment were listed as lasting from one day to several months. See October 2017 VA 21-8940. Throughout the appeal period, the Veteran has stated that she is able to obtain employment, however, she soon loses interest and her anxiety and depression prevent her from going to work, which results in her termination. See November 2013 NOD; June 2016 Mental Disorders DBQ. A response to a VA request for employment information from the Veteran's last full-time employer stated that the Veteran was terminated from this job as she did not show up as scheduled and was considered to have abandoned the job. See December 2017 VA Form 21-4192. The Board notes that the Veteran has had periods of employment during the appeal period. She was employed from September 2014 to May 2015; in October 2015 and December 2015; and from January 2017 to March 2017. See October 2017 VA 21-8940. However, although the Veteran may have been employed, the record clearly shows she was unable to maintain her employment due to her psychiatric symptomatology. As stated above, the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted from May 29, 2012 to November 12, 2018. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. M. Stedman, 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.