Citation Nr: 21062252 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-44 200 DATE: October 6, 2021 ORDER An initial 50 percent rating for a service-connected psychiatric disorder (claimed as posttraumatic stress disorder (PTSD) with an unspecified depressive disorder and cannabis use disorder) from October 8, 2014 to June 28, 2017 is granted. A rating greater than 50 percent for a service-connected psychiatric disorder is denied for the entire appellate period. A total disability evaluation based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Resolving any doubt in the Veteran's favor, since October 8, 2014, his service-connected psychiatric disorder manifested with depressed mood, anxiety, panic attacks, anger, irritability, suspiciousness, social isolation, chronic sleep disturbances, and mild memory impairment that caused occupational and social impairment with reduced reliability and productivity. 2. Since October 8, 2014, the Veteran's service-connected psychiatric disorder has not caused him to be unemployable. CONCLUSIONS OF LAW 1. From October 8, 2014 to June 28, 2017, the criteria for an initial 50 percent rating for a service-connected psychiatric disorder were approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code (DC) 9411. 2. Since October 8, 2014, the criteria for a rating greater than 50 percent for a service-connected psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, DC 9411. 3. The criteria to establish a TDIU based on a service-connected psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; Rice v. Shinseki, 22 Vet. App. 447 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from August 1990 to March 1994. VA received his claim on October 8, 2014. He served as a yeoman. In December 2019, the Board of Veterans' Appeals (Board) remanded the claim and directed the VA Regional Office (RO) to obtain additional medical examinations and opinions. These efforts were completed in October 2020, December 2020, and January 2021. The RO complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Although the Veteran did not file formal application for a TDIU, he contends he is unable to work due to his service-connected psychiatric disorder. Entitlement to a TDIU has been raised as part of the Veteran's increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an initial rating greater than 30 percent for a psychiatric disorder from October 8, 2014 to June 28, 2017, and a rating greater than 50 percent thereafter Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines 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). In assigning a higher disability rating, 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's PTSD, depressive disorder, and cannabis use disorder (referred to collectively as a "psychiatric disorder") was rated 30 percent disabling from October 8, 2014 to June 28, 2017, and 50 percent disabling thereafter. His psychiatric disorder is rated under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairments. See 38 C.F.R. § 4.130. The General Rating Formula provides: A 30 percent rating for 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, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating 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 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. A 100 percent rating 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. The U.S. Court of Appeals for the Federal Circuit has noted the "symptom-driven nature" of the General Rating Formula and that "a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Social Security Administration (SSA) records reflect that the Veteran began receiving disability insurance benefits in December 2012. A November 2013 SSA disability determination found that the Veteran's anxiety disorder, mood disorder, eating disorder, degenerative disc disease (DDD) of the lower back and neck impaired his ability to work. The report found that the Veteran's psychiatric disorders caused "moderate" restriction of ADLs and moderate difficulty in maintaining social functioning, concentration, persistence or pace. The report noted the Veteran had increasing back and neck pain in 2012 which led to absences at work and ultimately caused him to stop working. The Veteran was also noted to have had an increase in panic attacks and anxiety in 2012. The SSA determination highlighted a June 2013 psychiatric evaluation report which found the Veteran had "serious symptoms or impairments in social, occupational or school functioning," and that he had moderate difficulty with simple tasks and severe difficulty with complex tasks. The author of the report opined that the Veteran would have "significant difficulty with any type of work-related tasks at this time." The SSA determination concluded that the Veteran had the capacity to perform light work, except he would be limited to unskilled work that is routine and "low stress" (defined as work involving only occasional decision making, changes in work setting, and interaction with others). The Veteran would be "off-task" approximately 20 percent of a regular workday due to his psychiatric symptoms and the chronicity and severity of his musculoskeletal pain. VA mental health records reflect that the Veteran regularly participated in therapy with a VA social worker (C.V.) since 2014. During an October 2015 VA psychiatric examination, the Veteran reported anxiety, depressed mood, suspiciousness, anger, hypervigilance, reduced appetite, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. He reported having "horrible" panic attacks, although these attacks were much less frequent. He reported having approximately six panic attacks since January 2015. The Veteran reported he felt "incredibly depressed," for the last few years. He reported his relationship with his father and sister improved in recent years. He reported occasionally spending time with friends but described himself as a "loner." However, the Veteran also reported he could not participate in certain physical activities because of his neck and back problems. He reported working for a friend's window washing business three days a week since June 2015, but accepted minimal pay. He previously worked a construction position from 2007 to 2012 but quit due to his neck and back conditions. The examiner noted the Veteran's depressive disorder manifested with chronically depressed mood, social isolation, sleep disruption, and negative thoughts about himself, others, the world, and the future. The examiner described the Veteran's level of 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. During the interview, the examiner noted the Veteran's dress and hygiene were normal, his attention and concentration were intact, and his mental status was otherwise within normal limits. The examiner noted the Veteran did not report suicidal ideation but did state that he often felt he did not want to be alive. The VA examiner diagnosed the Veteran with PTSD and an unspecified depressive disorder. The examiner also noted the Veteran's chronic pain and musculoskeletal disabilities were relevant to understanding his psychiatric disorders. In a November 2016 VA therapy record, the Veteran reported anxiety, "constant" worry, hypervigilance, suspiciousness, panic, racing thoughts, avoidance, intrusive trauma-based thoughts, and restless sleep. The Veteran's therapist (C.V.) noted the Veteran's PTSD caused periodic depression when he self-isolates, neglects activities of daily living (ADLs), and forgets to eat. The Veteran also reported short-term memory problems, difficulty completing tasks, and dissociative episodes in which he became disoriented to time and place. C.V. opined that the Veteran's PTSD interfered with his ability to maintain employment, as the Veteran held over 20 jobs since service. C.V. opined the Veteran's PTSD was "very severe" and should be rated at 100 percent. However, she did not evince a review of all of the evidence then contained in the electronic record. Non-VA treatment records noted the Veteran's PTSD and depression were stable from January to March 2017. In March 2017, the Veteran reported an increase in anxiety attacks with periods of confusion, feeling overwhelmed, and trouble making decisions. The attending physician noted the Veteran's insight was good, his mood was normal and he was oriented to time, place and person. The Veteran's recent and remote memory were noted to be normal at that time. During a June 2017 VA psychiatric examination, the Veteran reported having severe back and knee pain in the past year that impaired his mobility and contributed to his depression. He reported having a close relationship with his father and denied any conflict with his siblings. Apart from occasionally visiting a friend, the Veteran denied any other significant social interaction and reported self-isolation. His activities included attending medical appointments, working on improvements on his property, walking, and hiking, although he was limited due to his neck and back problems. The Veteran reported he stopped working due to his musculoskeletal conditions and that he wanted to work, but felt he could not tolerate feeling "controlled." The Veteran reported feelings of paranoia, anxiety, loss of control, depression, crying spells. The VA examiner noted additional symptoms including chronic sleep impairment, mild memory loss, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. During the examination, the Veteran was cooperative, his attention and concentration were intact, and he indicated his mood was sad "most of the time." The examiner noted the Veteran's dress and hygiene were good and he was capable of managing his financial affairs. In August 2017, the Veteran reported his PTSD caused impotence and reduced appetite. He stated he could no longer go anywhere by himself because he believed he would "be sold into sex slavery or human trafficking." A September 2019 non-VA primary care record noted the Veteran had chronic PTSD, anxiety, depression and sleep difficulties, but had no difficulties with ADLs and was able to manage his medications and finances independently. During an October 2020 psychiatric examination, the Veteran reported worsening depression due to the death of his father in 2019. He reported nightmares, flashbacks, avoidance of public places and crowds, and hypervigilance. He reported feeling detached from people and "driving recklessly." The Veteran reported denied ever thinking of suicide in his lifetime and admitted to "pretending" to have suicidal thoughts to escape his military duties. He denied being depressed most days and stated his primary mood was "anger and irritability." He denied any mental health hospitalizations. He reported he had not been employed since 2017 but completed "odd jobs" for his friends. The examiner noted additional symptoms of panic attacks more than once a week, chronic sleep impairment, obsessional rituals that interfered with routine activities. The Veteran's hygiene, grooming and dress were appropriate, his speech was normal, and he was oriented to person, place and time. Judgment and insight were noted to be within normal limits. The examiner noted there were no obsessions, phobia, delusions, compulsions, hallucinations or psychosis. In December 2020, the psychologist who examined the Veteran in October 2020 (G.O.) amended her report to include an additional diagnosis of borderline personality disorder (BPD). She noted the Veteran's childhood physical and sexual abuse caused his PTSD and BPD, which resulted in poor vocational and social functioning as an adult. The examiner noted the Veterans' vocational and social problems worsened to the point where he had not worked in the past three years. She concluded the Veteran's psychiatric disorders caused occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. In a December 2020 report, another VA psychologist (S.J.) noted the Veteran had only mild to moderate functional impairment in 2017 and 2020. The psychologist also noted the Veteran had not been found to have overt cognitive impairment, significant memory impairment, poor judgment, or grossly inappropriate behavior. She noted the Veteran worked several jobs and was not always paid. However he was not prevented from performing these jobs due to PTSD. The examiner opined the Veteran's psychiatric symptoms would limit certain occupational settings, such as employment with multiple people and frequent interaction. However, the examiner concluded there was no medical evidence in the past three years indicating the Veteran was totally disabled. In a December 2020 telephonic mental health visit, the Veteran reported a constant depressed and pessimistic mood, anxiety attacks that induced vomiting, emotional numbness/distancing, intrusive trauma-based thoughts and persecutory fears. His stressors included grief over the death of his father, family conflict, physical health problems that affected mobility, and anxiety related to the global pandemic and social unrest. However, the Veteran reported he was recently married and got along well with his wife and most of his family members. He reported chronic fleeting suicidal thoughts that abated with engagement in meaningful activity. He denied any current suicidal ideation. He also reported spending time with his dogs helped relieve anxiety. In January 2021, G.O. submitted an additional addendum to her previous opinions. She noted the Veteran "had a long history of lying and manipulating his employers" that predated military service. The examiner noted the Veteran's psychiatric conditions clearly impacted his ability to work, however there was ample evidence (including SSA records) that the Veteran stopped working because of physical injuries in 2012 and not due to a psychiatric condition. The examiner noted there was no significant change in the Veteran's history or psychiatric symptom profile since 2017, and he had not had a trauma or spike in psychiatric symptoms. She noted the Veteran remains in treatment and his condition appeared to stabilize over the past three to four years. The examiner concluded there was no medical evidence to support a change in evaluation since the June 2017 VA examination. She opined that C.V.'s opinions were not relevant to her analysis because they predated the 2017 examiner's findings. The Board finds that the Veteran's symptoms from October 8, 2014 to June 28, 2017 approximate a 50 percent rating under DC 9411. SSA records reflect that the Veteran had increasing panic attacks and anxiety in November 2013 (approximately one year before the appellate period) which caused "moderate" social and occupational impairment and "severe" difficulty completing complex tasks. The record reflects that the Veteran's symptoms improved somewhat in 2014 due to medication and regular therapy. However, VA mental health records reflect that, since 2014, the Veteran's symptoms caused social impairment with reduced reliability and productivity. The Board will resolve any doubt in the Veteran's favor and grant an initial 50 percent rating, effective October 8, 2014. The preponderance of the evidence is against awarding a rating greater than 50 percent for the entire rating period. The medical records show no delusions, hallucinations, or significant cognitive impairment. The Veteran's grooming, hygiene and appearance have been noted as neat. The Veteran can manage his financial affairs and there is no indication that he cannot perform ADLs. The Veteran reports his mood is mostly angered and irritable, however he denied having "tantrums" and has been able to manage these symptoms effectively. His speech and thought processes have been noted to be normal and he has not demonstrated grossly inappropriate behavior. The Board also considered the Veteran's reports of alleged dissociative episodes, disorientation to time and place, short-term memory impairment, frequent panic attacks, and depressive episodes causing him to neglect ADLs. However, the record reflects that these symptoms have not impaired the Veteran's ability to function independently, appropriately and effectively. Throughout the appellate period, the Veteran maintained relationships with his family members and was not completely unable perform occupational tasks due to his psychiatric disorder. The Veteran also has repeatedly reported that he stopped working due primarily to non-service-connected disorders. For these reasons, a 50 percent rating is granted effective October 8, 2014. The preponderance of the evidence is against assigning a rating higher than 50 percent at any point during the appellate period. 2. Entitlement to a TDIU Viewed in a light most favorable to the Veteran, VA mental health records and SSA records reflect that the Veteran has been unemployed since 2012 and suggest that his service-connected psychiatric disorder impairs his ability to work. The Board will consider a claim for TDIU raised as part of the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447, 453 and 455 (2009) (holding that claims for higher evaluations also include a claim for a total disability rating based on individual unemployability (TDIU) when the appellant claims he is unable to work due to a service-connected disability). VA may assign a TDIU to veterans who are unable to secure or follow substantially gainful employment because of their service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more disabilities, one disability must be rated 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). These requirements are referred to as "schedular criteria" for a TDIU. The Veteran's only service-connected disability is his psychiatric disorder, which is rated 50 percent disabling since October 8, 2014 as a result of this decision. The Veteran has not met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a) ("If there is only one service-connected disability, it must be rated 60 percent or more..."). Where a veteran does not meet the schedular criteria, a TDIU evaluation can still be awarded if the evidence establishes that service-connected disabilities have rendered the veteran unable to secure and follow substantially gainful employment. See 38 C.F.R. §§ 3.340 (a), 3.341(a), 4.16(b). The fact that a veteran is unemployed or has difficulty finding employment does not necessarily mean that a TDIU will be granted. A high rating by itself establishes that a disability makes it difficult to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For a veteran to prevail on a claim based on unemployability, the record must reflect some factor which places him in a different position than other veterans with the same disability rating. Van Hoose; 38 C.F.R. §§ 4.1, 4.15. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. The preponderance of the evidence is against finding that the Veteran's service-connected psychiatric disorder by itself causes him to be unable to secure substantially gainful employment. The Veteran consistently reported that he stopped working because of his non-service-connected neck and back disabilities. VA may not consider a veteran's advancing age and non-service-connected disabilities when determining entitlement to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose, above. As noted above, the Veteran's psychiatric disorder causes moderate occupational impairment but does not cause him to be totally unable to perform the mental and physical tasks required for all types of employment. SSA records noted that the Veteran could perform unskilled routine work with limited decision making and social interaction. These records noted that neck and back pain also limited the Veteran's ability to stay on task while at work. The Board has considered favorable evidence, including SSA records, mental health records and the Veteran's therapist's (C.V.) opinion that he is "totally disabled" because of his psychiatric disorder. C.V.'s description of the Veteran's impairments is clearly relevant but not dispositive. The question of whether a veteran is unemployable is not a medical issue and is determined by an adjudicator, not a medical examiner. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007); Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The SSA records and their findings have limited probative value as to the ultimate issue of unemployability because they considered the Veteran's non-service connect cervical and lumbar DDD in addition to his service-connected psychiatric disorder. This evidence is outweighed by the VA examination reports and other medical evidence showing the Veteran does not have significant cognitive impairment, and is not totally unable to perform occupational tasks or form effective relationships due to his psychiatric disorder. (CONTINUED ON NEXT PAGE) As the preponderance of the evidence is against finding that the Veteran's service-connected psychiatric disorder causes him to be unable to perform the physical and mental tasks required for employment, a TDIU is denied and referral for extraschedular consideration is not warranted. When the preponderance of the evidence is against a claim, the benefit of the doubt rule does not apply. See Gilbert, above. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.