Citation Nr: 21069616 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-50 389A DATE: November 19, 2021 ORDER A rating of 70 percent, but no higher, for dysthymic disorder and generalized anxiety disorder is granted. Entitlement to a total disability rating due to individual unemployability is granted. FINDINGS OF FACT 1. The Veteran had active duty from December 1967 to September 1970. 2. Dysthymic disorder and generalized anxiety disorder have manifested by chronic sleep impairment, nightmares, frequent panic attacks, auditory and visual hallucinations, fleeting suicidal ideation, and continuously dysphoric and depressed mood. 3. Resolving all reasonable doubt in his favor, the Veteran's service-connected disability has precluded him from securing or following substantially gainful employment for the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for dysthymic disorder and generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.310, Diagnostic Code (DC) 9433 (2021). 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1110, 1521, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16. (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4.: All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). Under the General Rating Formula, a 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Turning to the evidence, a March 2013 VA examiner found that the Veteran has occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability perform occupational task only during periods of significant stress, or; symptoms controlled by medication, caused by symptoms of depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; difficulty in understanding complex commands; and suicidal ideation. The Veteran told the examiner that he got along well with his children, golfed twice per month, sometimes fished or hunted. VA medical records between March 2013 and March 2014 show frequent mental health appointments, which in turn reveal a consistently dysphoric or depressed mood, with fleeting suicidal ideation, anxiety attacks, nightmares. In an October 2013 record he described an experience of confusion, when he was in the driveway with his wife and suddenly did not know where he was. He similar instances of confusion occurred most days between one and three times. He also described visual hallucinations while driving during a March 2014 appointment in which he thought he saw trucks down the road he was about to run into but disappeared after closing his eyes. Next, a March 2014 VA examiner found his psychiatric disabilities caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication, due to symptoms of depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory for example retention of only highly learned material, while forgetting to complete tasks; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. He told the examiner that he was hospitalized for depression in 1983 and had a family history of mental illness. Further, VA medical records from the remainder of 2014 show fleeting suicidal ideation, dysphoric and depressed mood, some panic attacks, nightmares, increased irritability, and feelings of wanting to punch "stupid people" who were doing things that annoy him. In August 2014 he stated he had not slept in three days. In a later appointment that month he discussed difficulty concentrating, as he was forgetful and easily frustrated, and discussed perceptual disturbances where he would see people or vehicles coming toward him or seeing his father when in bed. The next month, he expanded that he would hear voices behind him or through a door, as well as animal sounds that were not real, and that he would see fully formed people in his peripheral vision, who were not there when he looked at them. He also described an experience in his backyard where he momentarily thought he was in the ocean in California. VA medical records from January to March 2015 show similar symptoms, with fleeting suicidal ideation, continued but lessening hallucinations, dysphoric and depressed mood, poor sleep with recurrent violence nightmares, and poor concentration. In March 2015, the Veteran's treating VA psychiatrist submitted a disability benefits questionnaire (DBQ) and found that his psychiatric disorders caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, due to symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often but also panic attacks more than once per week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss such as forgetting names, directions or recent events; impairment of short and long term memory, for example retention of only highly learned materials while forgetting to complete tasks; memory loss of names of close relatives, own occupation, or own name; flattened affect; difficulty in understanding complex commands; 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; inability to establish and maintain effective relationships; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence. The psychiatrist also stated the Veteran had a long history of anxiety, depression, panic attacks, which interfere with occupational and social functioning VA medical records for the period between March and November 2015 show continued fleeting suicidal ideation, difficulty sleeping, dysphoric mood with periods of anxiety and irritability, disturbances of appetite and sleep, nightmares, occasional panic attacks, anxiety, avoidance of people or crowded spaces, and instances in which the Veteran woke up feeling confused. In October 2015, he stated he was having visual hallucinations between twice daily and twice weekly. A November 2015 VA examiner found the Veteran's psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once per week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran described having a small circle of friends, but difficulties with social interaction due to lack of trust and that he found most people stupid. VA medical records for the rest of the year show similar symptoms, with particular emphasis on dysphoric mood and nightmares, as well as hearing voices talking about what he was doing and how he should do it differently, during both the day and night, as well as olfactory hallucinations. Next, 2016 VA medical records included continued mental health treatment, with similar symptoms noted. In January 2016, he described hearing voices and seeing people who had passed on like his father and mother. In August 2016, he endorsed fluctuating sleep, flashbacks, and nightmares where he woke up fighting and screaming, and in a later appointment the same month described experiences when he woke up and was looking around and did not recognize who he was or where he was. He tried looking for familiar things in the room but could not see them though they were there. The medical professional thought he may not have actually awoken from his dream. The next month he complained of memory issues and agreed to pursue some testing. Later in September 2016, mental status and dementia screenings were conducted and both were within normal limits with very few missed items, so the medical professional thus attributed symptoms of memory issues as some psychosis from depression as well as some loss of cognitive functioning that was age appropriate. Turning next to 2017 VA medical records, the show continued fleeting suicidal ideation, trouble with sleep maintenance, and depression. October 2017 records showed increased depressed mood, frequent panic attacks even while relaxed and fishing, and increased nightmares and insomnia, with bouts of confusion. He again described hearing his father's voice at night, as well as symptoms of avoidance, hypervigilance, mood instability, and difficulty being in crowds. Collectively, although not shown in each medical appointment, the Veteran had symptoms of fleeting suicidal ideation with strong protective factors, near continuous depression, intermittent hallucinations, impaired memory, periods of irritability, nightmares, and chronic sleep impairment. The Veteran's treating VA psychiatrist assessed in the March 2015 DBQ his psychiatric symptoms as causing occupational and social impairment with deficiencies in most areas, and this is supported by the medical evidence as a pattern of such symptoms has been demonstrated throughout the appeal period. His symptoms would cause deficiencies in most areas, as his irritability with others, issues with memory, and hallucinations would impact work, social relationships, judgment, thinking and mood. As such, a 70 percent rating is warranted. As for a rating in excess of 70 percent, the medical evidence fails to show total occupational and social impairment. The Veteran is able to maintain relationships with family and some friends, and does not have persistent delusions or hallucinations, only occasional. Additionally, he does not demonstrate persistent danger of hurting others, or more than momentary disorientation to time or place or the memory loss for names of close relatives, own occupation, or own name. As such, a rating of 70 percent, but no higher, is warranted by the medical evidence. In granting a higher rating, the Board has considered the Veteran's lay statements regarding his symptoms as well as the evidence provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. In sum, after a careful review of the evidence of record, a 70 percent rating, but no more, for a dysthymic disorder with generalized anxiety disorder is granted. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). 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 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As of this decision, the Veteran is service connected for dysthymic disorder with generalized anxiety disorder at 70 percent for the entirety of the appeal period. As he has one disability of 60 percent or more, he may thus qualify for a schedular TDIU. Turning then to the evidence, the Veteran claimed in August 2014 VA medical records to have a high school education. In a June 2015 application for increased compensation based on unemployability, he stated that he last worked in January 1982. His former employee submitted an April 2015 statement that he stopped working in 1983. He reported in a March 2014 VA examination that he had been on Social Security disability since May 1980 following an accident which resulted in a left upper extremity amputation, however December 2013 correspondence from the Social Security Administration indicated that the records regarding his disability determination had been destroyed. Tuning next to the medical evidence, as the Veteran is service connected only for the single disability discussed above, the evidence has been largely analyzed. In addition to the records reviewed above, October 2014 VA medical records show he stated he needed unemployment status as he was not able to get some jobs due to his extensive mental health hospitalization history, OSHA not allowing him to work at other jobs with only one arm, and still more jobs being unavailable to him because of having lost his arm. He claimed he had tried to gain employment but had been unable for many years. The Veteran's treating VA psychiatrist submitted a March 2015 DBQ and found that the Veteran had a long history of violence, anxiety, depression, and panic attacks which interfered with occupational and social functioning, and that he was prescribed three separate medications to treat his psychiatric symptoms. Next, a March 2014 VA examiner found that his psychiatric disorders caused symptoms that likely exert a moderately negative impact on his prospects for both physical and sedentary employment. Specifically, symptoms such as insomnia, fatigue, memory problems, irritability/anger, and concentration problems were likely to cause the most impairment in an occupational context. The examiner did not define sedentary employment but given the inclusive context, it is unnecessary as the examiner was stating that this impact would apply in all occupational settings. The November 2015 VA examiner found that the Veteran's psychiatric symptoms would limit his ability to work (particularly with efficiency, productivity, and overall reliability) in settings that necessitated extensive interpersonal interaction. In his June 2015 claim, the Veteran detailed that he lost his final job in the early 1980s, due to psychiatric symptoms which resulted in hospitalization. Although it was confirmed in a June 2015 report of general information that the records from the facility in which he stated he was hospitalized in did not nor no longer existed, the April 2015 correspondence from his former employer confirmed that he had been acting erratically, ranging from being withdrawn to very high spirited, and would take unnecessary risks at his job including speeding between job sites. At times he showed up to work seeming as if he had not slept the night before. The employer stated he was concerned for the both the Veteran's safety and that of other employees and thus terminated him. His employer also recalled that he learned afterwards that he had been admitted to a psychiatric hospital shortly after he was let go. Although many years before the appeal period, the pattern leading up to his termination from his last job is still probative in that it highlights the dangers of his irritability, low frustration tolerance, and sleep disturbance when working. Over the course of the appeal, he often stated that he had difficulty with social interaction due to lack of trust and that he found most people were stupid or ignorant. Further, his consistently dysphoric and depressed mood and frequent panic attacks would make dealing with customers or fellow employees difficult. He described chronic sleep impairment and nightmares, which could lead, as he stated in August 2014 VA medical records, to days at a time without sleep. Further, he demonstrated periodic problems with memory and concentration throughout the appeal period. Additionally, his hallucinations, specifically those occurring while driving, would be a significant impediment. It is unreasonable to assume he could safely maintain employment in a position that required frequent driving with such hallucinations. The last time he worked, his psychiatric symptoms resulted in his termination and hospitalization. The evidence during the appeal period does not suggest that if he was able to obtain employment currently, that he is now better equipped to deal with stressful employment situations, despite very frequent health treatment and multiple psychiatric medications. As such, resolving all reasonable doubt in his benefit, the Veteran is unable to obtain and maintain substantially gainful employment due to a service-connected disability, and thus the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan A. Evans, 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.