Citation Nr: 21063481 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 14-20 047A DATE: October 14, 2021 ORDER Entitlement to a disability rating of 100 percent, from November 12, 2003, for bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder, is granted. Entitlement to an initial disability rating in excess of 70 percent, prior to November 12, 2003, for bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from November 12, 2003 is dismissed as moot. Entitlement to a TDIU prior to November 12, 2003 is denied. FINDINGS OF FACT 1. Since November 12, 2003, the Veteran's bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder has been manifested in total occupational and social impairment. 2. Prior to November 12, 2003, the severity, frequency, and duration of the Veteran's symptoms from bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder did not more closely approximate total occupational and social impairment. 3. From November 12, 2003, the Board is granting a 100 percent rating for the Veteran's bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder; and no other service-connected disabilities rendered her unemployable during that period. 4. Prior to November 12, 2003, the Veteran was not unable to secure or follow a substantially gainful occupation due to her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 100 percent for the Veteran's bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder are met from November 12, 2003. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to an initial rating in excess of 70 percent for bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder, prior to November 12, 2003, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9434. 3. Entitlement to a TDIU is moot from November 12, 2003. 38 U.S.C. §§ 1155, 5107, 1114; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). 4. The criteria for entitlement to a TDIU, prior to November 12, 2003 have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1987 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder, assigning a 50 percent rating effective October 29, 1999 and a 100 percent rating effective June 2, 2010. A subsequent May 2016 rating decision increased the rating for the Veteran's psychiatric disorder to 70 percent prior to June 2, 2010. As the increase did not satisfy the appeal in full, the issue remains on appeal and has been characterized as shown on the title page of this decision. See AB v. Brown, 6 Vet. App. 35 (1993). The claim for a higher initial rating was denied by the Board in April 2016, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2017, the parties (the Secretary of VA and the Veteran) filed a Joint Motion for Partial Remand (JMPR), which was then granted by the Court. The Board then remanded the issue in September 2017. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The case has been returned to the Board for review. In the April 2016 decision, the Board found a claim for entitlement to a TDIU had been raised by the record and remanded that claim. TDIU was again remanded in June 2018. An October 2020 rating decision then granted entitlement to a TDIU and assigned an effective date of July 5, 2005. However, in connection with her appeal for a higher rating for her acquired psychiatric disorder, the Veteran stated that she could not work. Accordingly, the claim for entitlement to a TDIU was raised pursuant to her claim for higher ratings for her acquired psychiatric disorder. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the award of entitlement to a TDIU effective July 5, 2005 was not a full grant of the benefit sought and the issue of entitlement to a TDIU prior to July 5, 2005 remains on appeal. A Notice of Disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that a grant of TDIU for a portion of the appeal period does not bifurcate the appeal and, therefore, is considered a partial grant of the benefit sought). Increased Rating 1. Entitlement to a higher initial rating for psychiatric disorder is denied. The Veteran seeks a higher initial rating for her bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder (hereafter, "anxiety disorder"). The applicable rating period is from October 29, 1999, the effective date for the award of service connection for that disability, through June 1, 2010, as she was assigned a 100 percent rating effective June 2, 2010. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran's service-connected psychiatric disability is rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434, and the General Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). In relevant part, under the General Formula a 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. The issue in this appeal is whether, prior to June 2, 2010, the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. In the July 2011 notice of disagreement, the Veteran's representative stated that the Veteran should be awarded a 100 percent disability rating for the entire period on appeal. The medical treatment records, the VA examinations of record, and mental status examinations included in the Veteran's Social Security Administration records show that the Veteran has reported or has been observed to exhibit a range of psychiatric symptoms. A June 2002 private examiner noted current symptoms of depression, irritability, poor concentration, insomnia, increased worry, and passive suicidal ideations. An October 2002 evaluation reflects poor appetite, disturbed sleep, poor concentration, crying spells, and anxiety with panic attacks. At a November 12, 2003 VA examination, she reported insomnia, restlessness, irritability, and was argumentative. Upon examination, the Veteran's orientation was abnormal to time and her appearance and hygiene were not appropriate and showed signs of neglect. The VA examiner noted that the Veteran's behavior was not appropriate; however, panic attacks, delusions, hallucinations, obsessional rituals, suicidal ideations, and homicidal ideations were absent. At a November 2007 VA examination, the Veteran was oriented to person, time, and place with unremarkable thought content. The Veteran did not demonstrate hallucinations or obsessive/ritualistic behavior. She did not demonstrate homicidal or suicidal thoughts. Additionally, the Veteran was able to maintain personal hygiene. The Veteran's Social Security Administrative (SSA) records contain several psychological assessments. A May 2006 progress note reflects the Veteran complained of difficulty sleeping and concentrating. She reported mild depression and difficulty sleeping. An October 2007 mental status examination reflects depression, tiredness, headaches, dizziness, ongoing anger, lack of sleep and anxiety. She further reported sadness, appetite change, fatigue/loss of energy and recurrent thoughts of death. A September 2009 psychiatric evaluation reflects symptoms of depression, anxiety, and insomnia. She reported irritability, low energy, and dysphoric mood. Upon examination, the examiner noted dysphoria, low energy, anger/irritability, insomnia, panic symptoms, social anxiety, and obsessions/compulsions. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disability was manifested by total occupational and social impairment from November 12, 2003. The evidence of record reflects that the Veteran's orientation was abnormal to time and her appearance and hygiene were not appropriate and showed signs of neglect. Additionally, the VA examiner noted that the Veteran's behavior was not appropriate. When viewed in light of the entire evidence of record, the Board finds that the symptomatology described from November 12, 2003 more closely approximated a level of impairment that warranted a 100 percent disability rating. Prior to November 12, 2003, the Veteran's SSA records show that the Veteran's anxiety disorder was manifested by symptoms associated with a 70 percent rating, including some suicidal ideation, irritability, and panic attacks. The Veteran also had symptoms that are not listed under a specific rating, such as increased worry and crying spells. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximated the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran's symptoms are similar to near-continuous panic or depression, which are contemplated by the assigned 70 percent rating. They are also similar to impaired judgment and disturbances of motivation and mood, which are contemplated under the criteria for a 50 percent rating. As for occupational impairment, the fact her psychiatric symptoms resulted in lost time from work, prior to November 12, 2003, is contemplated by the 70 percent rating. The record also does not show that she had total social impairment due to her service-connected psychiatric disability. She was married beginning in approximately 2001 and any difficulties in that relationship is contemplated by the 70 percent rating based on inability to establish and maintain effective relationships. The Board notes that, prior to November 12, 2003, the Veteran's passive suicidal ideations are not similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The severity, frequency, and duration of the Veteran's passive suicidal ideations did not rise to the level contemplated by the 100 percent disability rating. While she sometimes reported such thoughts, the Veteran also regularly denied thoughts, intent, or a plan involving self-harm in treatment records and VA examinations. Therefore, they do not rise to the level of persistent danger of self-harm contemplated by the 100 percent criteria. The Board therefore finds that the criteria for a rating of 100 percent are met for the Veteran's anxiety disorder from November 12, 2003. However, the criteria for entitlement to a 100 percent rating prior to November 12, 2003 have not been met. To the extent that the Veteran seeks ratings in excess of those previously granted and granted herein, the preponderance is against the claim, the benefit-of-the-doubt doctrine is not for application, and the claim for ratings in excess of those previously granted and granted herein must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a TDIU prior to July 5, 2005. The Veteran seeks entitlement to a TDIU, prior to July 5, 2005. She contends that as of July 3, 2004, she was not able to work due to her service-connected disabilities. She has stated that, due to her service-connected irritable bowel syndrome (IBS) and anxiety disorder, she was unable to work as a postal service employee. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to July 5, 2005, the Veteran had the following disabilities that were service connected and are for consideration: bipolar II disorder, social anxiety disorder, generalized anxiety disorder, and panic disorder, rated as 70 percent disabling prior to November 12, 2003 and 100 percent disabling from November 12, 2003; IBS, rated as 30 percent disabling; and left bell's palsy, rated as 10 percent disabling. Based on the forgoing, the Veteran had at least one disability rated at 60 percent or more. Accordingly, the Board may consider the claim for a TDIU, prior to July 5, 2005, on a schedular basis. 38 C.F.R. § 4.16(a). Initially, the Board notes that with the grant herein, the Veteran will have a 100 percent rating for her service-connected anxiety disorder from November 12, 2003. Therefore, the issue of entitlement to a TDIU is potentially moot. See, e.g., Bradley v. Peake, 22 Vet. App. 280, 294 (2008); see also Buie v. Shinseki, 24 Vet. App. 242, 248 (2010). The Board recognizes that it is not categorically true that assignment of a total schedular rating always renders a TDIU request moot, particularly as it relates to possible entitlement to special monthly compensation. See Bradley, 22 Vet. App. at 293. SMC at the housebound rate is payable where a veteran has a single service-connected disability rated at 100 percent, and has an additional, service-connected disability or disabilities independently ratable at 60 percent, that are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See 38 U.S.C. § § 1114 (s); 38 C.F.R. § § 3.350 (i). The Board finds TDIU is not warranted from November 12, 2003. Under Bradley, a TDIU may be warranted in addition to a schedular 100 percent evaluation if the TDIU could be granted for a disability other than the disability for which a 100 percent schedular rating was in effect. Here, in the decision above, the Veteran has been granted a total disability rating for her service-connected anxiety disorder effective November 12, 2003. She is also independently service-connected for irritable bowel syndrome and left Bell's palsy. However, these do not meet a separate, independent 60 percent rating. Thus, the total rating for her service-connected anxiety disorder from November 12, 2003 did indeed moot the TDIU claim. However, there remains the time period on appeal prior to November 12, 2003. The claim for TDIU is part and parcel with the Veteran's initial increased rating claim. Therefore, the period on appeal is from October 29, 1999, the effective date for the Veteran's service-connected anxiety disorder. In a May 2018 VA Form 21-8940, the Veteran reported that she has two years college education and last worked full-time July 3, 2004. The Veteran reported that her service-connected disabilities affected her employment since she was placed on light duty, medical leave, and was written up and suspended multiple times. She further reported that she left work early. The Board notes that the record reflects that the Veteran was suspended from work on several occasions, prior to November 12, 2003 due to unsatisfactory attendance. Regarding physical limitations caused by the Veteran's service-connected disabilities, the medical treatment records reflect that the Veteran suffered from depression, irritability, poor concentration, insomnia, increased worry, and passive suicidal ideations. In a June 2003 correspondence, the Veteran reported that she is unable to perform daily activities, including her job, due to extreme pain and accidents caused by her IBS. In April 2003, the Veteran submitted a letter from a private physician regarding the need for a change in work schedule due to medical reasons. The private physician noted that in order to take medication properly and getting the required amount of sleep, the Veteran needed to work daytime hours, not later than 11:30 pm, to include a 40-hour work week. As discussed above, responsibility for the ultimate determination of whether a veteran is capable of securing or following substantially gainful employment is placed on the VA, not a medical examiner. The Board attributes probative value to the private physician's assessment as to the Veteran's likely functional impairment in a work or worklike setting due to the service-connected disabilities, as those assessments are based on the examiner's knowledge and expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). Therefore, the Board accepts the examiner's statements as probative evidence that, prior to November 12, 2003, the Veteran's service-connected disabilities limit her employability in that she would be limited to working daytime hours prior to 11:30 pm but could perform a 40-hour work week. In view of the above-described limitations, the Board finds that prior to November 12, 2003, the Veteran was essentially limited to work prior to 11:30 pm with access to a restroom. With such an occupational profile, the Veteran would be able to perform her work as a mail sorter with the United States Post Office. The Board has considered the Veteran's level of education, special training, and previous work experience. See 38 C.F.R. §§ 4.16. The record indicates that the Veteran has a high school diploma with two years of college education and worked as a mail processor from June 1997 to July 2004. The Board finds that the Veteran's education is not inconsistent with an ability to perform work of an unskilled or semi-skilled nature, such as sorting, inspection, or assembly work. The Board does not doubt the Veteran's reports that her service-connected disabilities limited her functional abilities prior to November 12, 2003. In addition, the Board acknowledges that the Veteran's nonservice-connected disabilities may further limit her functioning such that she is unable to secure or follow a substantially gainful occupation. However, her nonservice-connected disabilities are not for consideration in determining whether she is entitled to a TDIU. See 38 C.F.R. § 4.16. When only her service-connected disabilities are considered, the Veteran was limited to work during the day with access to a restroom. With such remaining functional capacity, the Veteran would be able to perform the duties required for sorting, inspection, or assembly work. As such, the probative evidence of record does not show that, prior to November 12, 2003, the Veteran was unable to secure or follow a substantially gainful occupation due to her service-connected disabilities. Rather, due to her service-connected disabilities, the Veteran was limited to daytime work. She has two-year college education, and her occupational experience did not further limit her ability to secure and follow substantially gainful unskilled or semi-skilled employment, such as sorting, inspection, or assembly work. Accordingly, the preponderance of the evidence is against a finding of entitlement to a TDIU prior to November 12, 2003, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. 49. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. G. LeMoine, 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.