Citation Nr: 21064176 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-20 620 DATE: October 19, 2021 ORDER 1. Entitlement to an initial 70 percent rating for anxiety disorder with depression, to include alcohol use disorder, (psychiatric disorder) is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's psychiatric disorder has most nearly approximated occupational and social impairment with deficiencies in most areas. 2. The Veteran's service-connected disabilities preclude him from following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 70 percent rating for a psychiatric disorder throughout the entire appeal period have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9413 (2020). 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to December 1992. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The RO reconsidered the matters on appeal in October 2014 and February 2021 rating decisions, and continued the denial of the claims. In March 2020, the Veteran appeared at a Board hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In an April 2021 letter, the Veteran was informed that the VLJ who held his hearing was no longer employed by the Board, as he had since retired. The Veteran was given the opportunity to elect to have a new hearing; however, he replied in June 2021 that he did not wish to appear at another Board hearing. In November 2020, the Board remanded the issues on appeal for further development. 1. Entitlement to an initial 70 percent rating for the psychiatric disorder is granted. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 50 (2007). Service connection for a psychiatric disorder was granted in the November 2013 rating decision on appeal, at which time the RO awarded a 50 percent rating effective January 17, 2013. The Veteran disagreed with the rating assigned for this condition in March 2014 and ultimately perfected this appeal to the Board. In a February 2021 rating decision, the RO amended the service-connected condition to include alcohol use disorder, and continued the 50 percent rating. The Veteran's psychiatric disorder has been rated 50 percent disabling based on the General Rating Formula for Mental Disorders under DC 9413. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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, DC 9411. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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. Id. A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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; and difficulty in establishing and maintaining effective work and social relationships. Id. The list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. VA treatment records reflect that the Veteran reported suicidal and homicidal ideation between January 2013 and August 2013. Specifically, he indicated that he had contemplated jumping off of a bridge. He struggled with substance abuse during this time and reported being homeless in June 2013. In October 2013, the Veteran was afforded a VA psychological examination. He reported that he was divorced and was employed as a housekeeper at a VAMC. He described symptoms including depression, anxiety, suspiciousness, sleep impairment, mild memory loss, and disturbances of motivation and mood. In May 2014, the Veteran underwent a second VA examination. He reported having contact with his daughter and continued to work for the VA. He noted that, since the previous examination, he had been evicted from his apartment and struggled with homelessness. He described symptoms including depression, anxiety, suspiciousness, sleep impairment, mild memory loss, flattened affect, impaired abstract thinking, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships. The report further noted the Veteran's neglect of personal appearance and hygiene. The examiner indicated that the depressive symptoms had intensified since the previous VA examination. In June 2015, the Veteran underwent a private psychological evaluation. The examiner noted symptoms including a difficulty in adapting to stressful situation, deficiencies in family relations and mood, an inability to establish and maintain effective relationships, an intermittent inability to perform daily activities, as well as deficiencies in work and school. In December 2015, the Veteran attended another VA psychological examination. He reported that he had a period of homelessness, prior to November 2015. He lived in a retirement community at the time of the exam. He stated that he interacted socially with the people in his apartment complex. He had left his job with the VA in August 2015, following an arrest for selling prescription drugs. He had attempted to obtain occasional employment through temporary employment agencies since that time. He reported some suicidal ideation during his period of homelessness. He described symptoms including anger issues, depression, anxiety, sleep impairment, and disturbances of motivation and mood. VA treatment records documented the Veteran's reports of suicidal ideation in October 2019 and January 2020. In March 2020, the Veteran testified at a Board hearing. He reported that his psychiatric disorder resulted in memory and concentration difficulties, as well as frequent panic attacks. He also reported experiencing suicidal ideation and weekly auditory hallucinations. He preferred to avoid crowds, but attempted to seek new relationships and friendships. The Veteran further stated that he was irritable, but was able to control his anger. He sometimes neglected personal hygiene and daily activities. In August 2020, the Veteran submitted another private psychological evaluation. The examiner identified symptoms including deficiencies in family relations and mood, difficulty in adapting to stressful situations, unprovoked hostility and irritability, an inability to establish and maintain effective relationships, deficiencies in work, as well as panic or depression affecting the ability to function independently, appropriately, and effectively. In February 2021, the Veteran underwent a VA psychological evaluation to determine the current severity of his condition. He reported having recent financial difficulties and that his car had been repossessed. He described symptoms including depression, anxiety, suspiciousness, mild memory loss, ongoing irritability, occasional panic attacks, and suicidal ideation. Most recently, in July 2021, the Veteran submitted a private psychological evaluation. The examiner noted symptoms including near continuous panic attacks, difficulty adapting to stressful situations, as well as an inability to establish and maintain effective relationships. The Veteran also provided a July 2021 statement, in which he described weekly panic attacks, suicidal ideation, avoidance tendencies, and sleep impairment. He indicated that he maintained contact with his brother. The record further reflects that the Veteran has received in-patient treatment on several occasions throughout the appeal period. He was enrolled in a treatment program for substance abuse between January 2013 and February 2013, but did not complete the program successfully. He later attended another program between July 2013 and August 2013, which he did complete successfully. In August 2019, the Veteran again enrolled in a substance abuse program, and was later admitted into a domiciliary program in September 2019 until December 2019. In January 2020, he participated in a VA psychological residential program, which he completed in February 2020. The Board notes that the February 2021 VA examiner (per the directives included in the November 2020 Board remand), indicated that the Veteran's substance abuse disorder is at least as likely as not aggravated by his service-connected anxiety disorder and that the substance abuse issues have resulted as an attempt to alleviate his feelings of anxiety and depression. As this evidence indicates that symptoms of the Veteran's psychiatric disorders cannot be separated, the Board must consider all of the Veteran's psychiatric symptoms, including those related to his substance abuse issues, in evaluating his claim. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that if it is not medically possible to distinguish the effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to the veteran's service-connected condition). Upon review of the evidence of record, the Board finds that the Veteran's psychiatric symptoms most closely approximate those warranting a 70 percent rating throughout the entire appeal period. In reaching this conclusion, the Board has considered both the medical and lay testimony describing the Veteran's symptoms. The above-cited evidence establishes that the Veteran's psychiatric disorder was manifested by symptoms such as irritability, angry outbursts, suicidal ideation, sleep impairment, depression, frequent panic attacks, as well as an inability to establish and maintain effective relationships. Indeed, the Veteran did not report having strong relationships with his family, and indicated that his social interactions were limited. Pertinently, the Board observes that he has consistently endorsed suicidal thoughts as early as January 2013. The Veteran also reported irritability and anger issues, which suggest impaired impulse control. The evidence of record further reflects that he frequently experienced panic attacks throughout the appeal period, which were determined to be on a near continuous basis. The record also indicates occasional neglect of personal appearance and hygiene, based upon the Veteran's lay statements and VA examiners' findings. The Board notes that the Veteran has reported being homeless on several occasions throughout the appeal period, and has been enrolled in multiple in-patient treatment programs for his substance abuse and psychiatric disorders. As the February 2021 VA examiner determined that the substance abuse disorder was aggravated by the psychiatric disorder, the related symptomatology is intertwined. This evidence is further indicative of occupational and social impairment with deficiencies in most areas. Additionally, in addressing 38 C.F.R. § 4.130, the United States Court of Appeals for Veteran's Claims held in Bankhead that "... the language of the regulation indicates that the presence of suicidal ideation alone, that is, a [V]eteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Considering Bankhead, and all the Veteran's symptoms, the Board finds that, collectively, they are of the type, extent, severity, and/or frequency indicative of occupational and social impairment in most areas of the Veteran's life, including work, social relations, judgment, thinking, or mood. Indeed, the evidence of record reflects symptoms involving irritability, social impairment, frequent panic attacks, and suicidal thoughts on a consistent basis throughout this period. Affording the Veteran the benefit of the doubt, the Board finds that his psychiatric condition has consisted of symptoms warranting a 70 percent rating for the entire period on appeal. However, the Board finds that the Veteran's psychiatric symptoms do not reflect total occupational and social impairment at any point during the appeal period. The Veteran did attempt to maintain partial employment for a portion of the appeal period and reported interacting with neighbors, his brother, and an occasional friend. He did not exhibit gross impairment in thought processes or demonstrate memory loss for names of close relatives or his own name. Despite reports of suicidal ideation and angry outbursts, such instances were not of the frequency to suggest that he was a persistent danger to himself or others, as confirmed by the VA examiners of record. He denied experiencing delusions and did not demonstrate inappropriate or ritualistic behavior. The Board notes that the Veteran reported auditory hallucinations at the Board hearing, and an intermittent inability to maintain activities of daily living was noted on one occasion. However, as these symptoms were not reported on a consistent basis, they are considered isolated occurrences and do not rise to the level of severity as to warrant a 100 percent disability rating. Considering the foregoing, the Board finds that the Veteran's symptoms do not more nearly approximate a rating in excess of 70 percent under the General Rating Formula throughout this period. The Board has considered whether staged ratings are appropriate for the Veteran's psychiatric disorder at any time during the appeal period. However, the Board finds that his symptomatology has most nearly approximated symptoms such as those exemplified by the 70 percent disability criteria throughout the period on appeal. Thus, staged ratings at any point throughout the appeal period are not warranted. In sum, a 70 percent rating, but no higher, is warranted for the entire period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU is granted. In order to establish service connection for a TDIU, there must be impairment so severe that it is impossible for the average person to follow a substantially-gainful occupation. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, 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 (2020). When the veteran's schedular rating is less than total, a total rating based upon unemployability may nonetheless be assigned. If there is only one service-connected disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be at least 70 percent. See 38 C.F.R. § 4.16(a) (2020). A total disability rating also may be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16(a) (2020); Van Hoose v. Brown, 4 Vet. App. 361 (1993). Marginal employment cannot be considered substantially-gainful employment. Generally, marginal employment exists when a veteran's earned annual income does not exceed the Federal poverty threshold for one person. 38 C.F.R. § 4.16(a) (2020). 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 (2012); 38 C.F.R. § 3.102 (2020); see also Gilbert, supra. The Veteran is currently service-connected for a psychiatric disorder, which has been awarded an initial 70 percent rating as discussed above. As such, he is service-connected for one disability rated at 60 percent or more. Thus, he meets the schedular criteria for a TDIU as outlined above. 38 C.F.R. § 4.16(a). Accordingly, the remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). With respect to the Veteran's education and work experience, the Board notes that the Veteran obtained his high school diploma and attended one semester of college. He held several positions following separation from service, including a mailroom supervisor and an airport supply clerk. He worked for the VA as a housekeeper between August 2013 and July 2015, on both part-time and full-time bases. He was terminated from that position due to an arrest for selling drugs. He worked sporadically for several temporary employment agencies, including at a newspaper company. At his hearing, the Veteran indicated he had worked 6 months for the newspaper in 2016, after which he stopped working altogether. The VA examination reports of record documented findings that the Veteran's psychiatric disorder resulted in an inability to establish and maintain effective work relationships, as well as in disturbances of motivation and mood. At the March 2020 Board hearing, the Veteran testified that he had difficulty maintaining a work schedule and that he preferred to work during shifts that were more isolated. The Board notes that several private examiners have concluded that the Veteran's psychiatric disorder results in moderately to markedly limited abilities to maintain employment. Indeed, the August 2020 and July 2021 examiners concluded that the Veteran would not be capable of performing gainful employment due to his service-connected psychiatric disorder. These conclusions were based upon the medical evidence of record, as well as interviews with the Veteran. Notably, the July 2021 examiner concluded that the Veteran's symptoms of depression and anxiety occurred frequently, despite medications, and were unpredictable in nature. These examiners indicated that the Veteran would experience limitations regarding the ability to remember work procedures, the ability to maintain regular attendance, the ability to interact appropriately with co-workers and supervisors, the ability to respond to changes in a work setting, as well as the ability to respond appropriately to instructions and criticism in the work place. Considering the totality of the record, the Board concludes that after his 2016 employment, the Veteran's service-connected psychiatric disorder, which includes alcohol use disorder, prevents him from following substantially gainful employment. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16 (a); Geib v. Shinseki, 733 F.3d 1350 (2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floor v. Shinseki, 26 Vet. App. 376, 381 (2013). Based upon the evidence of record, the Board finds that it is at least as likely as not the Veteran is unemployable due to his service-connected psychiatric disorder. As noted above, he meets the schedular requirements, he has been unemployed since working for a newspaper in 2016, and his psychiatric disorder has been shown to be severe enough to preclude employment. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). M. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.