Citation Nr: 21066659 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-33 057 DATE: November 1, 2021 ORDER 1. Entitlement to an increased rating, not exceeding 50 percent, for an unspecified mood disorder, with insomnia, is granted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's unspecified mood disorder, with insomnia, did not manifest by suicidal ideations, obsessional rituals that interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, near-continuous feeling of panic affecting his ability to function, spatial disorientation, impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation as to time or place, memory loss for names of close relatives, or for the Veteran's own occupation or name. 2. The evidence of record is at least in equipoise as to whether the combined effect of the Veteran's service-connected disabilities precludes him from obtaining and maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for an unspecified mood disorder, with insomnia, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9435. 2. The criteria for a TDIU rating are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from January 2001 to September 2004. These matters are before the Board of Veterans' Appeals (Board) on his appeal from a November 2017 rating decision issued by a VA Regional Office (RO) that denied the Veteran's claim for an increased rating for his unspecified mood disorder and his application for a TDIU rating. In June 2021, the Veteran who is service connected for degenerative disk disease (DDD) of his lumbar spine, radiculopathy of his left lower extremity, and an unspecified mood disorder, with insomnia testified as a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claim file. Addressing his unspecified mood disorder, the Veteran testified to his impaired impulse control, inability to manage his anger, difficulty in adapting to stressful situations, and his impaired ability to establish and maintain effective relationships. The Veteran also clarified that his DDD frequently causes him severe pain that contributed to his mood disorder. In addition, the Veteran clarified that his inability to obtain and maintain a gainful employment ensues from people avoiding him or having difficulty in socializing with him. The Veteran noted that his last employment was delivering pizza, and he selected that employment because the delivery process allowed him to predominantly self isolate from his colleagues. The Veteran, however, pointed out he was unable to maintain that even that employment due to his anger management problem. To illustrate his anger management problem, the Veteran pointed out that he "got pissed off because someone stole [his] parking spot" and noted that he occasionally threw "things" at the moments of his anger, albeit he was not throwing any item at any person in particular and or with intent to hurt anyone. The Veteran clarified that his current unpaid "employment" was in the form of "babysitting" a 10-year-old child who was the object of the Veteran's predominant social interactions. The Veteran stated he had only one other friend, an adult, and the Veteran had difficulty in maintaining relationships with his family members. To illustrate the latter, the Veteran testified that, during a recent family visit, he was driving "mad" because the Veteran did not wish to go for that particular visit. The Veteran also opined that he had memory problems and, to illustrate this point, the Veteran noted that he was forgetting where he placed his keys. In addition, the Veteran pointed out that he avoided crowds, experienced hypervigilance, e.g., preferred to sit at a place where he could see the door, was double-checking the locks on his front door, and occasionally failed to maintain his daily hygiene, e.g., skipped taking morning showers, albeit he was doing that not because of his inability to remember but rather due to his self-abandonment. The Veteran also testified that he experienced panic attacks up to three times per day, and these panic attacks felt as if he was "flipping out." The Veteran further testified that he had frequent sleepless nights and noted that rainy weather made his depression worse. In addition, the Veteran testified that he was aware of the hour and time of a particular day but was often unable to remember precisely how many months ago a particular event took place. The Veteran's relevant medical treatment records are, to a degree, consistent with his testimony. The Veteran's October 2020 psychiatric evaluation by his treating medical practitioner who incorporated reports of the Veteran's other treating medical practitioners recorded the Veteran's depression and attention deficit, while noting his denial of suicidal ideations. The medical practitioner, however, recorded the Veteran's chronic thoughts of death, such as "it would be a lot easier if I weren't here," which evinced the Veteran's nearly constant depression. Being asked if there was anyone whom the Veteran wished to hurt, the Veteran reported that he could think of a few people whose fingers he would, theoretically, like to "smash" or "break their arms," and made statements reflective of the Veteran's high degree of religious intolerance. However, the Veteran denied his inability to control his violent impulses or violent manifestations of his prejudices, or having any intention of actually hurting anyone, by saying, "I wouldn't actually do it; I know it's illegal and don't want to get in trouble." In addition, the Veteran's treating medical practitioner noted the Veteran's reports of sufficient social support from the Veteran's girlfriend whom "he strongly admired" and the Veteran's close contact with "a small group of very close friends from the military." The Veteran's medical treatment records preceding the October 2020 record are consistent with the above-detailed October 2020 observations. While these prior records reflect the Veteran's election to divorce his wife based on the Veteran's unwillingness to further tolerate his "loveless marriage," the records do not reflect any severe strains in personal relationships. Moreover, the records indicate the Veteran's ability to apply himself and perform tasks needed to be done, as well as his ability to make prudent decisions, e.g., "making needed repairs to his house, so it [could be] then be sold," plus the Veteran's ability to make long-term plans, e.g., "plans to travel [for] a while." Further, the Veteran's medical records reflect his numerous "deni[als of] any current difficulties with his sleep, or with fatigue[,] or anhedonia." By the same token, the Veteran's medical treatment records do not indicate that he reported his alleged panic attacks to the Veteran's treating medical practitioners at any point. (Indeed, the sole reference to "panic attacks" was made by a treating medical practitioner in November 2006, in connection with a note that the Veteran's Prozac treatment might be reinstituted if he began experiencing panic attacks.) Further, the Veteran's treatment records reflect his medical practitioners' consistent observations that the Veteran speech was normal in its rate and volume, and no disorders in his thought process or lack of personal hygiene were observed. 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 a disability resulting from all the types of diseases and injuries encountered due to the events in military service. Where entitlement to service connection and an initial compensation have already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). 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 the two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The symptoms recited in the Rating Schedule for evaluating mental disorders are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, the claimant must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). When determining the appropriate disability evaluation to assign, the Board's primary consideration is the veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Id. at 118. Here, the Veteran's mood disorder is evaluated under the general rating formula for mental disorders. 38 C.F.R. § 4.130, DC 9435. Under DC 9435, a 50 percent rating is warranted when the evidence shows an 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, and difficulty in establishing effective work and social relationships. Id. In contrast, an 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 ideations, 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 warrants a 70 percent rating. Id. Further, a 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 warrants a 100 percent rating. Id. Here, the Veteran's Board hearing testimony was not so inconsistent with his medical records to cause the Board to question the credibility of his testimony. Assessing the Veteran's record of medical treatments and his Board testimony in toto, the Board finds that the Veteran's acquired psychiatric disorder manifests by symptoms approximating those corresponding to a 50 percent rating. However, while the Board acknowledges the Veteran's occasional conscious election not to take a morning shower, his frequent inability to remember where he placed his keys, his tendency to check door locks twice, his driving "mad" to a family visit that he did not wish to make, etc., the Board is without a basis to equate these mental symptoms with the level of disability approximating a 70 percent rating since the Veteran does not experience suicidal ideations or obsessional rituals so severe that they would interfere with his routine activities, did not exhibit speech that is intermittently illogical, obscure, or irrelevant, did not report experiencing near-continuous panic attacks affecting his ability to function independently, denied having an impaired impulse control resulting in injury to other persons, and has never alleged experiencing spatial disorientation. A fortiori, the Board is without a basis to find that the Veteran's mood disorder manifested by symptoms warranting a total rating. Based on the foregoing, the Veteran's claim for an increased rating for his acquired psychiatric disorder is granted, but only to the extent that the rating is increased from 30 to 50 percent. Given that the Veteran's DDD has been rated at 40 percent, and his radiculopathy has been rated at 10 percent, the Board's award of a 50 percent increased rating for the Veteran's acquired disorder brings his combined rating from 64 percent (rounded down to 60 percent) to 73 percent, which is rounded down to 70 percent. With this important change in mind, the Board now turns to the Veteran's claim for a TDIU rating. The law provides that a total disability rating may be assigned where the schedular rating is less than total if the disabled person is unable to secure and/or follow a substantially gainful occupation as a result of his/her service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. 38 C.F.R. § 4.16(a). Here, upon the Board's award of an increased 50 percent rating for the Veteran's mood disorder, he has become eligible for a schedular TDIU rating since the Veteran's combined rating has become 70 percent, and his acquired psychiatric disorder and DDD are both rated at 40 percent or higher. Entitlement to TDIU requires the presence of an impairment so severe that it is impossible for the average person to secure or follow a substantially gainful occupation. Consideration may be given to the claimant's level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching a TDIU determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). When all the evidence is assembled, VA determines whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board gives the Veteran the benefit of the doubt on any issue material to his claim when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009) (quoting 38 U.S.C. § 5107 (b)). The Board, however, considers all of the evidence of record and makes appropriate determinations. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). Here, the Veteran testified that his last paid employment was as a pizza delivery person, and his inability to socialize caused his co-workers' refusal to talk to him, their outright avoidance of the Veteran, and their expression of fear of him. Prior to his delivering pizzas, the Veteran was an unskilled laborer performing hard physical activity; that employment ended in October 2016. Further, the Veteran's severe pain caused by his DDD and radiculopathy of his lower left extremity rendered the Veteran unable to perform hard physical activity, such as being a laborer. Moreover, the Veteran's current "employment" in the form of babysitting a 10-year-old child cannot qualify as "employment" for the purposes of the Board's TDIU analysis. This is so not only because this "employment" is unpaid but also because even had this "employment" had been paid it would qualify as employment in a protected environment. Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017). Moreover, the Veteran's willingness to take such a "job" on an unpaid basis speaks volumes since during his Board hearing testimony the Veteran clarified that his willingness to spend time with the "babysat" child ensued solely from the Veteran's desire to socialize with a person who would not be judgmental of the symptoms of the Veteran's service-connected disabilities. Thus, the Board finds that the combined effect of the Veteran's service-connected disabilities in the form of DDD, radiculopathy, and mood disorder prevent the Veteran from both obtaining or maintaining a sufficiently gainful occupation. Accordingly, the Veteran's claim for a TDIU rating is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.