Citation Nr: 21069732 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-66 561 DATE: November 19, 2021 ORDER A rating of 70 percent, but no higher, from June 1, 2010, to May 8, 2017, for the Veteran's acquired psychiatric disorder of unspecified depressive disorder, other unspecified trauma, and stressor-related disorder is granted. A total disability rating based on individual unemployability (TDIU) is granted from June 1, 2010, to May 8, 2017. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the severity, frequency, and duration of the Veteran's acquired psychiatric disorder symptoms more closely approximate occupational and social impairment with deficiencies in most areas throughout the period on appeal. 2. The competent and probative evidence is at least in equipoise as to whether the impairment caused by the Veteran's service-connected disabilities precluded substantially gainful employment throughout the period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no higher, for an acquired psychiatric disorder from June 1, 2010, to May 8, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413. 2. The criteria for a TDIU, from June 1, 2010, to May 8, 2017, 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 served on active duty from June 1978 to February 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2019 decision, the Board denied the claim of an initial rating above 50 percent for an acquired psychiatric disorder and entitlement to a TDIU before May 9, 2017, and the Board granted a rating in of 70 percent, but no higher, as of May 9, 2017, for an acquired psychiatric disorder. The Veteran appealed the May 2019 denial to the United States Court of Appeals for Veterans Claims (Court), which in February 2020 vacated in part the Board's May 2019 decision denying entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disorder and entitlement to a TDIU before May 9, 2017. The Veteran did not challenge the grant of a 70 percent rating for an acquired psychiatric disorder as of May 9, 2017. In an October 2020 decision, the Board granted an initial 70 percent rating for an acquired psychiatric disorder and entitlement to a TDIU prior to March 23, 2010 but denied a rating above 50 percent for an acquired psychiatric disorder from June 1, 2010, to May 8, 2017, and remanded the issue of entitlement to a TDIU from June 1, 2010, to May 8, 2017, for further development. The Veteran appealed the denial of a disability rating above 50 percent for an acquired psychiatric disorder from June 1, 2010, to May 8, 2017, to the Court. In a July 2021 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacated, in part, the Board's October 2020 decision, and remanded the case for further development. In the JMPR, the parties agreed that the Board failed to discuss and consider evidence of symptoms indicative of a higher rating from June 1, 2010, to May 8, 2017. The issue of a higher rating before March 23, 2010, was dismissed as it was not challenged. The issue of entitlement to a TDIU from June 1, 2010, to May 8, 2017, was not addressed as it was outside of the Court's jurisdiction. The remanded issue of entitlement to a TDIU from June 1, 2010, to May 8, 2017 was readjudicated in a January 2021 supplemental statement of the case (SSOC). Subsequently, the Veteran filed a March 2021 VA form 10182 opting into the direct appeal of this issue with the Board. Therefore, an AMA appeal is before the Board as to this one issue. However, given the increased rating for PTSD issue before the Board in the legacy appeal stream from the Court, and pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board finds that the TDIU issue is part and parcel of the increased rating issue and is therefore part of this legacy appeal stream. Since the same issue remains in the AMA appeal at this time, it will be dismissed when that matter is decided by the Board in docket order. In addition, the Board notes that the January 2021 copy of the SSOC that was mailed to the Veteran's attorney was returned to VA as undeliverable. However, given the fully favorable decision contained herein, any error caused is harmless. Increased Rating 1. A rating in excess of 50 percent for an acquired psychiatric disorder from June 1, 2010, to May 8, 2017. The Veteran's representative contends that the Veteran's acquired psychiatric disorder warrants a disability rating in excess of 50 percent for the entire period on appeal. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before she filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. The medical and industrial history are to be considered, and a full description of the disability's effects upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Under the General Formula for Mental Disorders (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). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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 an 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. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information, including lay and medical evidence of record, in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Board concludes that the evidence is in equipoise as to whether throughout the period on appeal, the Veteran's symptoms resulted in a level of impairment that most closely resembled the level of impairment associated with a 70 percent rating. June 2010 VA treatment notes show the Veteran denied suicidal and homicidal ideation, but during that month also described feeling "out of control," crying, hearing going, speech rambling, nausea, thoughts of suicide when the pain gets worse, and that she would rather not talk about things right now because she would start crying. She noted, "I want to hurt myself, take a knife and get rid of the pain." The VA clinician found no current risk of suicide, no sign of mania, and no pressured speech. She was observed as having an appropriate speech and affect, dressed appropriately, alert, and oriented to person, place, and time. November 2012 VA treatment records show the Veteran reported that she lives alone with her fish and dog, cares for her grandson once per month, sleeps five hours per night, cannot fall and stay asleep, and has nightmares of the military. She reported being irritable, in a panic mood, feeling panicky about having a heart attack or a stroke, feeling stressed about being around family during the holidays, and being manic and going on a spending spree in the month of October 2012. The VA clinician observed that she was talkative and oriented to time, place, and personal information. She was found to have a normal tone and rate of speech, normal motor activity, sad mood, full and anxious affect, logical and coherent thought process, and normal thought content without hallucination or suicidal or homicidal ideation. The clinician noted the Veteran was refusing any other treatment, not taking Vistaril, but compliant with Paxil. February 2013 VA treatment records show the Veteran reported anxiety, that her medical conditions have resulted in stress, not exercising, not eating the same, sleeping three to five hours per night, being unable to fall asleep, having nightmares of "slaughterhouses," experiencing some hopelessness and lack of motivation, being less tearful but more irritable, and being worried about dying and about flying to Las Vegas for her daughter's wedding. She also reported that her mood is doing well despite her medical issues, and she has not been especially depressed. When queried about suicidal ideation, she said she has thoughts about it at times but would not act on those thoughts because of her grandson. She reported spending time with her son and grandson, making a friend, living with her dogs, and looking forward to attending her daughter's wedding in May. The February 2013 VA staff psychiatrist found the Veteran was a low suicide risk and that no preventive actions were needed. She was observed as alert, pleasant, cooperative, and oriented to time, place, and personal information. She was found to have a slightly anxious mood and affect; speech within normal limits for rate, volume, and production; logical, coherent, and goal-directed thought process; thought content relevant to the topic with no hallucinations or suicidal or homicidal ideations; no evidence of a thought disorder; "up and down" mood, a full affect with anxious tone; and good motivation for treatment. May 2013 VA treatment records show the Veteran reported doing fairly well or all right, living alone with her dog, caring for her grandson on and off, and hanging out with her son and his family. She also reported sleeping five hours, waking up with pain, being unable to nap, being less tearfulness, feeling as though she has cancer, and feeling worried about finances, health, and her family, and feeling fear of flying to Las Vegas for her daughter's wedding, but she was successful in making the trip and handled making small talk with her ex-husband well. She noted it bothers her when she must deal with her son because she finds him angry. Mental status examinations in May 2013 showed she was alert, pleasant, cooperative, and oriented to time, place, and personal information. She had a normal speech in tone, rate, volume, and production; normal motor activity; a pretty high and anxious mood; a full range affect with an anxious tone; logical and coherent thought process; thought content negative for any hallucinations or suicidal or homicidal ideations; fair judgment; and good motivation for treatment. During a July 2013 VA mental health visit, the Veteran reported being stressed, thinking she has cancer, and sleeping poorly, but denied nightmares, a lack of motivation, irritability, or isolation. The Veteran got a new puppy and now lives alone with two dogs. An October 2013 VA psychiatrist found the Veteran's depression manifest in hopelessness with medical issues, tearfulness, and isolation. The Veteran denied suicidal or homicidal ideations, psychosis, and panic. The Veteran reported fewer racing thoughts associated with her mania but endorsed obsessive-compulsive disorder (OCD) symptoms of excessively cleaning and checking locks. During a December 2013 VA mental health visit, the Veteran reported hopelessness, lack of motivation and interest, sleeping six to seven hours per night, inability to fall asleep, nightmares, tearfulness, inability to focus, worry about finances, and the cost of living. She continues to live alone with her two dogs, occasionally caring for her grandson, and spending time with her son and family. A January 2014 VA clinician observed the Veteran was angry, tearful, and verbally abusive but cooperative. The clinician noted no physical aggression and that a suicide risk assessment was completed in February 2013, and no changes were found. The Veteran denied current suicidal or homicidal ideations or hallucinations. A February 2014 mental status examination showed the Veteran was oriented to time, place, and personal information. She had a normal speech tone and rate, normal motor activity, an angry mood, a full range affect with an anxious tone, logical and coherent thought process, thought content negative for any hallucinations or suicidal or homicidal ideations, and fair judgment. A July 2014 VA examiner found the Veteran's acquired psychiatric disorder manifested in the symptom of a depressed mood and caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner observed that the Veteran arrived early for her appointment, was casually and nicely dressed, sat upright in her chair, maintained adequate eye contact, was articulate and able to answer all questions asked of her, had no psychomotor agitation or retardation, and her thought production appeared functional and spontaneous. She denied any current suicidal ideation, and her judgment and insight appeared fair. The Veteran stated she was inpatient hospitalized in 2011, this was a continuous cycle that lasted about six months, and at that time, she was suicidal, but she denied any thoughts since that time. Following an August 2015 suicide risk assessment, a VA staff psychiatrist determined the Veteran's current risk level for potential harm is moderate for desire, capability, and intent. The psychiatrist noted that the Veteran's suicidal ideation is frequent but short-lived and that making of a plan is evident but that there is no subjective or objective evidence of intent. The psychiatrist found the Veteran willing to engage in treatment and have social supports and significant protective factors in place, such as being close to her family and grandson. Nevertheless, the psychiatrist found that immediate action was needed for suicide prevention. The psychiatrist proposed inpatient treatment at that time, but the Veteran declined. The VA mental health history and assessment note showed the Veteran had depression manifest in hopelessness, lack of motivation, tearfulness, irritability, passive suicidal ideation without intent, manic symptoms such as racing thoughts and pacing behavior, and OCD symptoms of excessive cleaning and checking locks. During a September 2015 VA mental health visit, the Veteran reported experiencing some passive suicidal ideation but no current plan or intent to harm herself and that this symptom is not as severe as it was six to eight months ago. The VA clinical psychologist determined there was no evidence that the Veteran poses a risk of harm to herself or others at this time. The psychologist observed the Veteran was alert, oriented, pleasant, cooperative, had an anxious or agitated mood, an affect congruent to her mood, good motivation for treatment, speech within normal limits, a logical and goal-directed thought process, thought content relevant to the topic, and no evidence of a thought disorder. November 2015 and December 2015 VA mental status examinations showed that the Veteran was alert and oriented, pleasant and cooperative, had a euthymic mood, speech within normal limits for rate, volume, and production, and logical and goal-directed thought process, and thought content relevant to the topic. A January 2016 VA mental health note states the Veteran was alert and oriented, pleasant and cooperative, and that she had good motivation for treatment, a slightly anxious mood with a congruent affect, speech within normal limits for rate, volume, and production, and logical and goal-directed thought process with thought content relevant to the topic, and no evidence of a thought disorder. The Veteran reported experiencing some passive suicidal ideation but denied having a current plan or intent to harm herself. She said that her suicidal ideation was not as severe as it was one year ago. A February 2016 VA recreation therapy leisure assessment states the Veteran's primary diagnosis is panic disorder, post-traumatic stress disorder, OCD, generalized anxiety disorder, major depression, hypertension, carpal tunnel syndrome. During the assessment, the Veteran stated she wanted to control her high blood pressure so she could be aware of when her anxiety was triggered so she could catch it before she goes into a panic. The Veteran denied suicidal or homicidal ideations during an April 2016 unscheduled nursing assessment. A May 2016 VA clinical psychologist found the Veteran to be alert, oriented, pleasant, cooperative, and have a cheerful mood with congruent affect. The psychologist found the Veteran had good motivation for treatment and normal speech, thought process, and thought content. The psychologist opined there was no evidence that the Veteran posed a risk of harm to herself or others at that time. An October 2016 VA mental health group note indicates the Veteran participated in a group discussion and offered support to other veterans; her behavior was appropriate throughout most of the group. The Veteran did not report or indicate suicidal or homicidal ideations or being in a crisis. VA treatment records and the Veteran's lay statements show that the Veteran's acquired psychiatric disorder during the period on appeal was manifested by symptoms of occasional suicidal ideation, difficulty in adapting to stressful circumstances, near-continuous panic or depression affecting the ability to function appropriately, obsessional rituals which interfere with routine activities (as evidenced by her obsessive cleaning and lock checking); these symptoms are associated with a 70 percent rating. Lower disability ratings contemplate her symptoms of depressed mood, anxiety, and chronic sleep impairment. She had no symptoms related to a 100 percent rating (e.g., total occupational and social impairment, 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 Board notes that the Veteran expressed suicidal ideation, which is similar to the persistent danger of self-harm, which the 100 percent rating criteria contemplate. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation have not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records and during the July 2014 VA examination. After conducting a holistic analysis, the Board finds a 70 percent rating, but no higher, is warranted for the entire period on appeal. The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 70 percent rating, but no higher, are met, and the appeal is granted. TDIU 2. Entitlement to a TDIU from June 1, 2010, to May 8, 2017. The Veteran's representative contends a TDIU is warranted. He argues that the Veteran's severe acquired psychiatric disorder symptoms have prevented her from working throughout the period on appeal. A TDIU may be assigned, where the schedular rating is less than total, and a veteran cannot secure or follow a substantially gainful occupation due to 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 non-economic 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 non-economic 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 non-exertional) to perform the types of activities the occupation at issue requires (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 workplace stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of a 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 can perform the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has one service-connected disability during the appeal period, an acquired psychiatric disorder, now rated 70 percent throughout the period on appeal. The percentage threshold for a schedular TDIU is met during the appeal period from June 1, 2010, to May 8, 2017. See 38 C.F.R. § 4.25. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). After resolving all reasonable doubt in favor of the Veteran, a review of the record demonstrates the competent and probative evidence is at least in equipoise as to whether the Veteran's acquired psychiatric disorder renders her unable to secure and maintain substantially gainful employment. The record demonstrates that the Veteran is a high school graduate and, in 1991, completed an 18-week computer accounting course. She stopped working in 2007 as a kennel manager due to her depression, anxiety, and back pain. Although the July 2014 VA examiner found the Veteran's acquired psychiatric only caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, treatment records, as noted above, show the Veteran's acquired psychiatric disorder caused the Veteran difficulty in adapting to stressful circumstances, manic mood swings, near-continuous panic or depression affecting the ability to function appropriately, and obsessional rituals which interfere with routine activities. Given the preceding, the Veteran's service-connected acquired psychiatric disorder has precluded her from the ability to secure and follow a substantially gainful occupation consistent with her education, skills, training, and work history from June 1, 2010, to May 8, 2017. See 38 C.F.R. § 4.16(a). Accordingly, a TDIU is warranted for the entire period on appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.