Citation Nr: 21068024 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-45 947 DATE: November 8, 2021 ORDER Entitlement to a disability rating of 70 percent for an acquired psychiatric disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in his favor, the Veteran manifested occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood, during the rating period on appeal. 2. The most probative evidence is at least in equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disorders. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.130, Diagnostic Code (DC) 9400. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1968 to May 1969. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2020 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional development. 1. Entitlement to a disability rating of 70 percent for an acquired psychiatric disorder Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, 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). Further, a disability rating may require re-evaluation in accordance with changes in a veteran's condition. 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," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Under the General Rating Formula, a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A maximum 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; memory loss for names of close relatives, own occupation, or own name. The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. The Veteran's service-connected acquired psychiatric disorder is currently rated as 50 percent disabling. The Board has carefully reviewed the medical and lay evidence of records and has determined the Veteran's symptoms have more nearly approximated a 70 percent rating throughout the appeal period. The Veteran was afforded a VA psychiatric examination in November 2013. The examination report shows the Veteran continued to have symptoms of a depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The November 2013 VA examination report does not reflect that the Veteran had suicidal ideation, difficulty establishing and maintaining effective and social relationships, or difficulty in adapting to stressful circumstances. The examiner determined the Veteran's mental condition had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. A review of the record reflects that the Veteran underwent a VA psychological evaluation in June 2015. The VA psychiatrist and neuropsychologist who performed the evaluation concluded that the Veteran's cognitive profile was the result of several complex medical and psychiatric factors, as well as the presence of lower-bound task engagement. Medical factors that may have contributed to his profile include the secondary effects from neurosyphilis and several vascular risk factors. The Veteran received a VA examination in December 2017. The examiner noted the Veteran exhibits symptoms of mild memory loss, flattened affect, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The examiner noted the Veteran's acquired psychiatric condition resulted in occupational and social impairment with reduced reliability and productivity. However, this examiner also noted the Veteran exhibited cognitive deficits and recommended neuropsychiatric retesting to evaluate if the cognitive impairments were neurodegenerative in nature, or the impact of psychiatric and psychosocial stressors. In November 2019 VA received a private psychological evaluation report completed by Dr. M.C. He reviewed the Veteran's records and concluded the Veteran was totally occupationally and socially impaired due to his PTSD symptoms of gross impairments of thought processes, grossly inappropriate behaviors, impaired impulse control, suicidal ideation, inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, disturbances of motivation and mood, flattened affect, chronic sleep impairment, suspiciousness, anxiety, and depressed mood. The Board acknowledges that Dr. M.C. provided a discussion of the Veteran's symptoms that are related to his acquired psychiatric disorder; however, a review of Dr. M.C.'s report reflects that he did not specifically address the Veteran's diagnosed neurosyphilis. Pursuant to the April 2020 Board remand, the Veteran was to receive an additional VA examination to address symptoms that are attributable to his service-connected acquired psychiatric disorder compared to any diagnosed cognitive disorder such as neurosyphilis. The Veteran received a VA examination in January 2021. The examiner noted the Veteran exhibited occupational and social impairment with reduced reliability and productivity. The Veteran reported suicidal ideation, and endorsed symptoms of anxiety, suspiciousness, panic attacks weekly or less often, mild memory loss, flattened affect, disturbances of motivation and mood, and inability to establish and maintain effective relationships. The examiner specifically noted the only symptoms attributable to the neurosyphilis are gait abnormality and poor coordination. The Veteran reported suicidal ideation in his January 2021 VA examination, November 2019 private examination report, and June 2015 psychiatric assessment. The Board notes that the U.S. Court of Appeals for Veterans Claims (Court) held that suicidal ideation generally rises to the level of symptomatology contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas"). Upon a careful consideration of the foregoing, the Board has determined that the Veteran's service-connected acquired psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that in addition to the suicidal ideation demonstrated by the record, the Veteran's other psychiatric symptoms, to include anxiety, chronic sleep impairment, suspiciousness, panic attacks, and inability to establish and maintain effective relationships, have clearly caused significant occupational and social impairment commensurate with a 70 percent disability rating. Thus, the Board finds a 70 percent rating is warranted for the Veteran's service-connected acquired psychiatric disorder. Based on a review of the record, however, there is no evidence, lay or medical, persistent delusions or hallucinations, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, or own occupation, or own name. The medical evidence of record reflects that he has not exhibited, auditory or visual hallucinations, delusions, or disorientation to time, place, person, and situation. Moreover, the Board does not find that the record reflects total occupational and social impairment resulting from the symptomatology of record. In so finding, the Board has considered the November 2019 private evaluation, as discussed above, but affords that evaluation less probative weight as the examiner did not differentiate between the Veteran's service-connected and non-service-connected disabilities in rendering his ultimate opinion. In sum, based on the foregoing evidence, and taking into consideration the benefit of the doubt rule, the Board finds that the Veteran's social and occupational impairment have not both been "total" at any time during the period on appeal. Accordingly, the Board finds a rating higher than 70 percent is not warranted for the Veteran's service-connected acquired psychiatric disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16 (a). If there are two or more such 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). 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. 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. 2,317 (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. 38 C.F.R. §§ 3.341, 4.16, 4.19; 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 the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). First, as the Veteran's acquired psychiatric disorder is now rated as 70 percent disabling, he has met the schedular requirements for assignment of a TDIU. The Veteran is also service-connected for diabetes at 20 percent disabling and left inguinal hernia as noncompensable. As there is one disability rated at 40 percent disabling, the percentage requirements for a TDIU are met. 38 C.F.R. § 4.16 (a). Second, the Veteran has been unemployed since April 15, 2013. He contends his service-connected disabilities impacted his employment since 2004. He reported frequent absences due to medical appointments and needing to take too many breaks. The Veteran has two years of college education and training in combination welding. Third, the evidence shows the Veteran has been unable to follow or maintain substantially gainful employment due to a combination of his service-connected disabilities. Notably, of record are a private medical opinion and VA examinations supporting the Veteran's claim. In a November 2013 VA examination, he reported being semi-retired and denied any attendance or performance problems. In a December 2017 VA examination, the Veteran reported having an associate's degree, working as an accountant for 25 years, and that he last worked three years ago. In November 2019 the private medical report by Dr. M.C. concluded that the Veteran was unable to function adequately in occupational settings since 2010 due to his mental illness symptoms. Dr M.C. further stated that there is no modern employed environment that would tolerate the severity of the Veteran's mental illness and that the Veteran would create an unsafe work environmental in any type of manual or sedentary position and is unemployable due to his mental illness. In January 2021, the most recent VA examiner noted the Veteran had intrusive thoughts which interfere with the ability to stay focused on the task at hand. Resolving all doubt in favor of the Veteran, the Board finds that the evidence establishes the Veteran is unable to follow or maintain substantially gainful employment due to his service-connected disabilities, particularly his acquired psychiatric disorder. Accordingly, entitlement to a TDIU is warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, 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.