Citation Nr: 21062636 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 15-08 893A DATE: October 8, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for generalized anxiety and major depressive disorder with substance abuse is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's generalized anxiety and major depressive disorder with substance abuse is not productive of total social and occupational impairment. 2. The Veteran has met the schedular criteria for TDIU, and his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for generalized anxiety and major depressive disorder with substance abuse have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.130, Diagnostic Code 9434. 2. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16.4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1984 to October 1985 and from October 2001 to July 2002. He also had additional service in the California Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2013 and March 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2019. A transcript is of record. The Board remanded the case for further development in June 2019 and November 2019. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in an August 2019 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation to 70 percent for the Veteran's service-connected generalized anxiety disorder with major depressive disorder and substance abuse effective from July 29, 2019. In a January 2020 rating decision, the AOJ also implemented the November 2019 Board decision granting a 70 percent evaluation effective from September 23, 2013. Law and Analysis Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, a uniform evaluation for the appeal period is warranted based on the evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this case, the Veteran is currently assigned a 70 percent evaluation for his service-connected generalized anxiety and major depressive disorder with substance abuse to 38 C.F.R. § 4.130, Diagnostic Code 9434. Ratings under diagnostic codes 9201 to 9440 will be evaluated using the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Note 2. The General Rating Formula for Mental Disorder provides that a 70 percent rating is assigned when the psychiatric disorder results in 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 is warranted when there is 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 and place; and memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his service-connected generalized anxiety and major depressive disorder with substance abuse. The medical and lay evidence does not show the Veteran to have 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 and place; or memory loss for names of close relatives, own occupation, or own name. The treatment records indicate that the Veteran does not have hallucinations, delusions, or psychotic symptoms. See September 2014, October 2015, March 2019, and January 2020 VA treatment records. They also show that he has a linear and goal-directed thought process, clear and normal speech, and intact insight and judgment and that he is alert and oriented to place, person, and situation. See September 2014, October 2015, and March 2019 VA treatment records. The Veteran has also denied having suicidal and homicidal ideation on numerous occasions, as well as thoughts of harming others. See October 2015, March 2019, April 2019, and January 2020 VA treatment records. It was further noted that he had good grooming and hygiene in October 2015 and that his memory was within normal limits in January 2020. A November 2013 VA examiner noted that the Veteran had anxiety and panic attacks that occur weekly or less often. However, he was not found to have a depressed mood; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; memory loss; flattened affect; circumstantial, circumlocutory, or stereotyped speech; intermittently illogical, obscure, or irrelevant speech; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work. or a worklike setting; inability to establish and maintain effective relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; or disorientation to time or place. A July 2019 VA examiner also found that the Veteran had a depressed mood; anxiety; panic attacks weekly or less often; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships. However, he did not have suspiciousness; memory loss; flattened affect; intermittently illogical, obscure, or irrelevant speech; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time or place. A September 2020 VA examination revealed a depressed mood; anxiety; suspiciousness; panic attacks weekly or less often; chronic sleep impairment; circumstantial, circumlocutory, or stereotyped speech; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; an inability to establish and maintain effective relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. However, the Veteran still did not have memory loss; flattened affect; intermittently illogical, obscure, or irrelevant speech; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; gross impairment in thought processes or communication; suicidal ideation; obsessional rituals which interfere with routine activities; spatial disorientation; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time or place. In addition, the November 2013 VA examiner found that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The July 2019 and September 2020 VA examiners also indicated that he had occupational and social impairment with reduced reliability and productivity. Such findings are commensurate with 30 percent and 50 percent evaluations, respectively. Moreover, to the extent that any of the symptoms contemplated in the rating criteria for a 100 percent evaluation or similar symptoms may be shown or argued, the Board finds that the Veteran's service-connected disability is not productive of total occupational and social impairment. The Board emphasizes that a 100 percent disability evaluation requires both total social and occupational impairment. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive "or" requirement must be met in order for an increased rating to be assigned). With respect to social impairment, the Veteran told the November 2013, July 2019, and September 2020 VA examiners that he has been married twice. Although he is still legally married to his second wife, they have been separated since 2006. He had not remained in contact with his son from his first marriage, but he did maintain contact with his three daughters from his second marriage. During the February 2019 hearing, the Veteran testified that he maintained relationships with his children, grandchildren, sister, and a few friends. Although an October 2015 VA treatment record noted that the Veteran did not have friends, it was noted that he had some acquaintances and that he was living with a girlfriend that same month. VA treatment records dated in October 2016 also show that he was living with friends, and in September 2017, the Veteran noted that he had support from his family and church. In addition, a January 2020 VA treatment record documented the Veteran's report that he had very few friends and lots of acquaintances and that he had good relationships with his children and grandchildren. Thus, while the evidence does show that the Veteran has some degree of social impairment, it cannot be said that he has total social impairment. As discussed further below, there is evidence showing that the Veteran has occupational impairment resulting from his service-connected psychiatric disability, but that his unemployability is due to the combination of his service-connected disabilities. Nevertheless, even if the Veteran were shown to have total occupational impairment due solely to his service-connected psychiatric disability, the fact remains that he has not been shown to have total social impairment, as required by the rating criteria for a 100 percent evaluation. After considering the evidence of record, the Board finds that the Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria, nor have the Veteran's symptoms caused total occupational and social functioning. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 100 percent have not been met or approximated for this time period. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Therefore, the Board finds that an increased evaluation is not warranted. TDIU All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected 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. 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 inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also 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 keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In this case, the Veteran is currently service-connected for generalized anxiety disorder and major depressive disorder with substance abuse (70 percent disabling), degenerative disc disease of the lumbar spine at L3-4 and L4-5 (20 percent disabling), degenerative joint disease of the left hip with limitation of extension (10 percent disabling), radiculopathy of the right lower extremity (10 percent disabling); radiculopathy of the left lower extremity (10 percent disabling), limitation of flexion of the left hip (noncompensable evaluation), and a thigh impairment of the left hip (noncompensable evaluation). His combined evaluation is 80 percent. Therefore, the Veteran meets the schedular criteria for TDIU. In addition, the evidence shows that the Veteran is unable to secure and follow substantially gainful occupation as a result of his service-connected disabilities. In a November 2014 VA Form 21-8940, the Veteran reported that he was previously employed as a janitor and stopped working in March 2010. He indicated that he had finished high school and listed PTSD, low back, bilateral radiculopathy in his legs, and degenerative joint disease of the left hip as the disabilities that prevent him from securing or following any substantially gainful occupation. During February 2019 hearing, the Veteran testified that he had not worked since 2006. He indicated that he could not work due to panic attacks and physical limitations, particularly with lifting. During a February 2010 examination, the Veteran reported that he worked in the military as a mechanic and in the infantry and military police. He stated that he had last worked for one month in the retail industry before being laid off in November 2009. He indicated that he had not held consistent employment since his service in the National Guard because of his chronic pain. A November 2013 VA back and hip examiner indicated that the Veteran's back and hip disabilities limited his ability to work, as he had limitations with bending, pushing, pulling, lifting, occasionally carrying 50 pounds, and frequently carrying 25 pounds. However, he was able to perform active daily lifting activities, including washing dishes and doing laundry with the noted limitations. A November 2013 VA mental health examiner noted that the Veteran's symptoms would cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Hee reported that his chronic back condition and anxiety symptoms prevented him from securing and maintaining employment. The examiner stated that the Veteran's anxiety symptoms prevent him from securing and maintaining employment and that it is likely that his unemployment is due to the effects of a mental disorder. In a November 2014 addendum, the same VA mental health examiner reiterated that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. However, she found that his mental health disorder did not render him unable to maintain gainful physical or sedentary employment. She explained that, on some occasions, the Veteran might have difficulty with solving problems on the job, difficulty responding to change, and difficulty handling time pressures and multiple tasks due to his anxiety and panic attacks. However, the examiner noted that he was generally functioning satisfactorily with normal routine behavior. Nevertheless, she did note that the Veteran had reported that his unemployment is due to the effects of his medical conditions, such as chronic back pain. In December 2015, a social worker indicated that the Veteran's psychiatric symptoms interfered with his ability to obtain employment and operate in a large setting. A July 2019 VA mental health examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. She noted that he did not have impaired judgement, difficulty understanding complex commands, or impaired abstract thinking. Nor did he have impaired impulse control or obsessional, ritualistic behaviors that interfere with daily functioning. There was also no evidence of active psychotic symptoms, such as hallucinations and delusions. However, the examiner did note that the Veteran has difficulty establishing and maintaining relationships and struggles with adapting to stressful situations. She commented that he would function best in a solitary work environment with minimal responsibility and high levels of consistency. The examiner concluded that, although those symptoms certainly impact his occupational functioning, they do not prevent him from performing the sedentary tasks associated with employment. A September 2020 VA mental health examiner also found that the Veteran had occupational and social impairment with reduced reliability and productivity. He noted the Veteran's report that his pain management is a major factor in driving his anxiety and depression and that he has not been on medications for pain in over five years. It was also noted that his depression was better and that he had not had a panic attack in quite a while. However, the examiner indicated that the Veteran's use of alcohol had increased, which may also increase anxiety and causes impaired impulse control. He stated that the Veteran will likely experience moderate levels of distress in occupational and social settings, but less in sedentary roles. An October 2020 VA spine examiner found that the Veteran's service-connected back disability impacted his ability to work. Specifically, he indicated that the Veteran could stand for 20 minutes, sit for 15 minutes, walk for 30 minutes, and lift no more than 20 pounds. It was noted that he had trouble standing up after sitting and needs to grab something to pull himself up. He also has leg weakness, and his legs give out at times. An October 2020 VA hip examiner further stated that the Veteran's service-connected left hip disability impacted his ability to work. In this regard, it was noted that the Veteran could sit or stand for 15 minutes and walk for 20 minutes. He also had difficulty standing after sitting, and it was painful to climb ladders or stairs for more than two to three steps at a time. Based on the foregoing, the evidence demonstrates that the Veteran would be limited in performing some physical activities due to his service-connected back and left hip disabilities. Moreover, he would have difficulty performing sedentary employment due to an inability to sit or stand for long periods of time. In addition, the Veteran's service-connected psychiatric disability would interfere with his ability work. Indeed, the November 2014 VA examiner noted that the Veteran would have difficulty responding to change, handling pressure, and solving problems on the job due to his anxiety and panic attacks. In December 2015, a social worker also indicated that the Veteran's psychiatric symptoms interfered with his ability to obtain employment and operate in a large setting, and the July 2019 VA examiner found that he has difficulty establishing and maintaining relationships and struggles with adapting to stressful situations. She commented that the Veteran would function best in a solitary work environment with minimal responsibility and high levels of consistency. The September 2020 VA mental health examiner further commented that the Veteran will likely experience moderate levels of distress in occupational and social settings. Moreover, the Veteran's prior work experience consists mainly of physical labor and did not involve sedentary employment. He also does not have any training or higher education that would provide him with other skills. Based on all of the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the combined effects of the Veteran's service-connected disabilities preclude substantially gainful employment, particularly when his work experience and education are considered. Accordingly, the Board concluded that the Veteran is entitled to TDIU. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M. Walker 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.