Citation Nr: 21071444 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 13-24 654 DATE: November 30, 2021 ORDER Entitlement to an initial increased rating in excess of 30 percent for anxiety disorder is denied. Entitlement to a total disability based on individual unemployability (TDIU) from September 28, 2009 is granted. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From September 28, 2009, the preponderance of the evidence demonstrates that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial increased rating in excess of 30 percent for anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400. 2. The criteria for entitlement to a TDIU from September 28, 2009 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 with the United States Marine Corps from 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for an increased rating in excess of 30 percent for an anxiety disorder was denied by the Board in an April 2020 decision which was subsequently appealed by the Veteran to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Partial Remand (JMPR) in August 2021. The Court's order vacated the portion of the April 2020 decision of the Board which denied a disability rating in excess of 30 percent for an anxiety disorder. The case was returned to the Board for readjudication consistent with the Court's order. 1. Entitlement to an initial increased rating in excess of 30 percent for anxiety disorder Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's anxiety disorder is currently evaluated as 30 percent disabling under Diagnostic Code 9400 for generalized anxiety disorder. Diagnostic Code 9400 is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating in excess of 30 percent. The Board concludes that the Veteran's symptoms cause the level of impairment required for a disability rating of 30 percent, but no higher. The Veteran's symptoms more closely approximate the symptoms associated with a 30 percent rating and result in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. A 30 percent rating is assigned when there is occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. § 4.71a, DC 9411, General Rating Formula for Mental Disorders. Evidence related to the severity of the Veteran's anxiety disorder throughout the appeal includes an October 2009 private psychological evaluation completed by Dr. C.C. During the evaluation, the Veteran reported being close to his siblings. He last worked in 1995 delivering papers and picking them up, and prior to that he was employed as a school security guard and coach. He reported that he left his last employer because the company closed. He stated that he has never been prescribed psychotropic medication and has never received inpatient or outpatient psychiatric treatment. He stated that he currently lives by himself, attends church twice a month, likes to watch tv and work the concession stand, and he is able to perform activities of daily living independently. The Veteran stated that he still dreams about the war in Vietnam, and he tries to push the thoughts and memories out of his mind. During the mental status examination, Dr. C.C. observed that the Veteran was on time and of average grooming. Dr. C.C. noted that the Veteran's eye contact was good and there was no evidence of a thought disorder. He engaged in conversation easily and his affect ranged from appropriate to sad with him being tearful and crying at times about his experience in Vietnam. He was alert, responsive, and oriented in all spheres. The Veteran also reported that he gets angry when things are not done right. He also stated that he does not sleep well but has a good energy level good. He has never attempted suicide and does not have suicidal ideations. In June 2010, the Veteran was afforded a VA examination. The examiner noted that the Veteran has not had any hospitalizations or outpatient treatment for his condition. The Veteran also reported that he does not currently receive any treatment and has not had any symptoms related to his anxiety disorder during the past year. He stated that he has a great relationship with his daughter and good relationships with his grandchildren and great grandchildren. He also stated that he has been dating a woman for approximately three months, describing the relationship as a "regular sex thing." He has two close friends, stays in touch with several war buddies, and knows many associates in the community. He stated that he enjoys spending time with his girlfriend, working for a high school athletic booster club that he founded, and attending church. He has no history of suicidal ideation. During the mental status examination, the Veteran reported that he feels fine and all right. The examiner observed that he was clean, neatly groomed, appropriately dressed, and casually dressed. His speech was clear and coherent and he his demeanor was friendly and attentive. The Veteran's affect was normal, and his mood was described in the stated terms: "I feel fine, I feel alright." He was oriented in all three spheres. His thought process and content were unremarkable as the Veteran understands outcome of behavior. There were no hallucinations, obsessive or ritualistic behavior, panic attacks, or homicidal or suicidal ideations. The Veteran reported sleep impairment, but with good energy. He also stated that he does not have a problem with activities of daily living due to his mental health. He denied experiencing depression, anxiety, or mania/hypomania. Chronic symptoms reported by the Veteran included: intrusive memories, once a year of minimal severity; distressing memories, a month ago of mild severity; nightmares, a week ago of mild severity; flashbacks, a year ago of mild severity; avoidance of thinking about trauma, most of the time of mild severity; avoidance of people and places, and some of the time of mild severity. He also reported moderate sleep impairment, irritability some of the time, minimal hypervigilance, and minimal exaggerated startle response. The Veteran reported enjoying football games, sports, and travel. He denied anhedonia and social detachment. The examiner opined that the Veteran's signs and symptoms of anxiety are transient or mild and decrease work efficiency and ability to perform occupational tasks only during period of significant stress. Difficulty sleeping is his most pertinent symptom. Most recently in March 2019, the Veteran was afforded a VA examination for his anxiety disorder. The examiner opined that the Veteran's signs and symptoms of anxiety disorder result in 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 Veteran reported that he has a nephew who resides with him and helps take care of him. He also has a family friend who helps as well. He describes relating well with family members and is close to his siblings. He spends time maintaining his home. He retired from school board and denies being employed. He reports experiencing anxiety approximately once a week related to worrying about his family. He denies depressed mood, sleep impairment, anhedonia, or anger and irritability. The only symptom noted by the examiner is anxiety. During the mental status examination, the examiner observed that the Veteran was casually dressed with good hygiene. He was fully oriented and cooperative during the examination. His affect appeared euthymic and congruent with his reported mood. His thought process was organized, and his speech was coherent. There was no evidence of psychosis, and the Veteran appeared to have good insight and judgment. He denied suicidal or homicidal ideations. Throughout the appeal period, both VA treatment records and private treatment records noted that the Veteran was always well oriented to place, person, and time. Specifically, during his December 2009 initial outpatient visit, he reported that he does not feel unhappy, depressed, or anxious. He denied crying spells, insomnia, and suicidal or homicidal ideations. His judgment and insight were within normal limits. He was alert and oriented in all 3 spheres, and his recent and remote memory were intact. A mood disorder was not noted, and his affect was appropriate. During a primary care appointment in June 2016, the Veteran denied depression, increased anxiety, insomnia, or suicidal or homicidal ideations. His affect was normal, and he had good memory and judgment. During cardiology appointment in June and September 2018, the Veteran denied depression or anxiety. Overall, the Veteran's symptoms resulted in occupational and social functioning that is more commensurate to a 30 percent rating. Throughout the appeal, the Veteran experienced occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as anxiety and chronic sleep impairment. The Veteran has been retired throughout the appeal reporting in October 2009 that he stopped working as a newspaper delivery person because the company closed. He did not attribute his retired status to his anxiety disorder. During the October 2009 evaluation and June 2010 VA examination, the Veteran reported that his anxiety disorder does not preclude him from independently completing his activities of daily living. In March 2019, he reported that his nephew and friend help take care of him, but the Veteran did not specify as to whether he needs taken care of due to his mental or physical impairments. Based on the Veteran's statements, the Board finds that the evidence does not indicate that the frequency, severity, or duration of his anxiety symptoms and sleep impairment significantly interfere with his occupational abilities. It is significant to note that the Veteran only reported sleep impairment during the October 2009 evaluation and June 2010 examination. The Veteran did not indicate that he had problems with sleep during the March 2019 examination, in fact, he reported that he did not experience any symptoms related to his anxiety in the past year. Also of significance is the fact that the June 2010 examiner opined that the Veteran's symptoms are mild and transient and only decrease work efficiency an ability to perform occupational tasks during periods of significant stress, which warrants only a 10 percent evaluation. Throughout the appeal, the Veteran has reported good relationships with his family. He also has a couple of friends and had a girlfriend at one point. The Veteran has expressed enjoyment of several activities including church, television, sports, travel, and working at a concession stand. Thus, although the Veteran experiences sleep impairment and anxiety, the Board finds that the frequency, severity, and duration of these symptoms related do not significantly interfere with his overall social function. The Veteran's mental status examinations throughout the appeal period have shown that the Veteran is appropriately dressed and groomed, he is oriented in all spheres, his speech is normal, his thought process is unremarkable, his insight and judgment are good, and his memory is intact. He has denied suicidal and homicidal ideation throughout the appeal period. His mental status throughout the appeal has been more approximate to a 30 percent rating and is absent any sort of delusions, impaired judgment, illogical speech, obsessional rituals, or spatial disorientation to warrant a rating higher than 30 percent. The Board further finds that the severity, duration, and frequency of the Veteran's symptoms have not produced occupational or social impairment with reduced reliability of productivity warranting a rating increase to 50 percent. The evidence shows that the Veteran maintains positive relationships with his family and a couple of friends, and he enjoys activities like church, sports, television. During his VA medical appointments, the Veteran has denied depression, anxiety, and insomnia. The evidence shows that the Veteran does not struggle with occupational tasks as he has maintained that he is able to independently complete activities of daily living. He does not work as his most recent employer closed. The Veteran has not expressed that he had any difficulties while employed due to his anxiety disorder. Overall, the evidence shows that the Veteran is capable of caring for himself and enjoys some activities. In sum, the Board concludes that the Veteran's anxiety is not manifested by symptomatology that more nearly approximates the criteria for the next higher evaluation under Diagnostic Code 9400. As the criteria for the 50 percent rating are not met, it logically follows that the criteria for any higher evaluation likewise are not met. In short, the preponderance of the evidence weighs in support of finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 30 percent rating. Accordingly, an evaluation in excess of 30 percent is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 2. Entitlement to a total disability based on individual unemployability from September 28, 2009 The Veteran contends that he is unable to work due to his service-connected disabilities. See October 2010 Correspondence. A claim for a TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, there is evidence suggesting that the Veteran's service-connected disabilities interfere with his ability to maintain employment. As the record now raises a question of whether the Veteran is unemployable due to his service-connected disabilities, a claim for a TDIU is properly before the Board. The Board notes that the Veteran was granted a TDIU effective January 6, 2010 in the April 2011 rating decision. However, as the Veteran raised entitlement to a TDIU during the pendency of the current appeal before the Board, the Board finds that his claim for TDIU has been pending since receipt of his original claim for an increased rating for his anxiety disorder on September 28, 2009. See Payne v. Wilkie, 31 Vet. App. 373 (2019); see also Harper v. Wilkie, 30 Vet. App. 356 (2018). A total disability rating may be assigned when the schedular rating is less than 100 percent where a Veteran is 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, that disability is rated 60 percent or more, or if there are two or more disabilities, there shall be at least one disability rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, the Court offered guidance in defining "unable to secure and follow a substantially gainful occupation." In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court found that 38 C.F.R. § 4.16 (b) has two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. From September 28, 2009, the Veteran has established service connection for anxiety disorder rated as 30 percent disabling, residuals of shrapnel fragment wounds involving muscle groups VII and VIII rated as 20 percent disabling, type II diabetes mellitus rated as 20 percent disabling, left lower extremity neuropathy rated as 10 percent disabling, right lower extremity peripheral neuropathy rated as 10 percent disabling, right upper extremity neuropathy rated as 10 percent disabling, left upper extremity neuropathy rated as 10 percent disabling, right ankle strain rated as 10 percent disabling; and renal insufficiency, status post right knee arthroscopy, residual scars, hypertension each rated as noncompensable. The Veteran's combined rating for compensation purposes was 80 percent, with disabilities of both the upper and lower extremities considered as one disability ratable at 40 percent or greater. 38 C.F.R. §§ 4.25, 4.26. Therefore, the Veteran met the schedular rating criteria for TDIU. 38 C.F.R. § 4.16 (a)(1). The remaining inquiry is whether he was unable to secure or follow substantially gainful occupation due solely to service-connected disabilities. The evidence of record shows that the Veteran previously worked as a security guard, high school sports coach, as a newspaper delivery person, and doing yard work. During a June 2010 VA examination for his shrapnel fragment wounds, the examiner opined that the condition would have significant occupational effects as the Veteran would have problems with lifting and carrying due to decreased strength and upper extremity pain. The examiner also noted that the Veteran's left arm weakness and pain prevents him from driving far or participating in other activities such as climbing of ladders or sports using his arms. The same examiner opined that the Veteran's right ankle condition would also impose restraints on the Veteran's ability to engage in occupational tasks due to decreased mobility, strength, and pain. The right ankle limits the Veteran's ability to stand or walk or engage in activities that require standing or walking. The Veteran was also afforded a VA examination in June 2010 for his anxiety disorder. The examiner opine that the Veteran's signs and symptoms are transient or mild, but he would experience decreased work efficiency and ability to perform occupational tasks only during period of significant stress, with difficulty sleeping as his most pertinent symptom. In September 2010, the Veteran was afforded a VA examination for his diabetes mellitus, type II, and the examiner opined that his neuropathy associated with his diabetes would make it difficult to work. Based on the foregoing, the Board finds that the preponderance of the evidence supports a finding that the Veteran's service-connected disabilities render him unemployable. Specifically, the evidence suggests that the Veteran is both physically and mentally precluded from engaging in the occupational tasks necessary of a security guard, sports coach, delivery person, or yard maintenance person. The Veteran's difficulty sleeping would prevent him from being alert and able to respond quickly to incidents while working as a security guard. Additionally, the Veteran would be unable to safely drive and deliver newspapers with impaired sleep. The tasks of a security guard, sports coach, and yard maintenance person are physically demanding, and the Veteran's decrease strength and mobility and pain due to his upper and lower extremities would make it very difficult to be successful in these positions. Therefore, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Accordingly, a TDIU is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.