Citation Nr: 21072973 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-13 598 DATE: December 7, 2021 ORDER An initial rating in excess of 30 percent from May 19, 2011, through May 6, 2019, and in excess of 50 percent from May 7, 2019, for an acquired psychiatric disability is denied. Prior to June 17, 2019, a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. From May 19, 2011, through May 6, 2019, the Veteran's acquired psychiatric disability did not result in occupational and social impairment with reduced reliability and productivity. 2. From May 7, 2019, the Veteran's acquired psychiatric disability has not resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. Prior to June 17, 2019, the Veteran's service-connected psychiatric disability did not make him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. From May 19, 2011, through May 6, 2019, the criteria for a disability rating in excess of 30 percent for an acquired psychiatric disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. From May 7, 2019, the criteria for a disability rating in excess of 50 percent for an acquired psychiatric disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.130, Diagnostic Code 9411. 3. Prior to June 17, 2019, the criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to October 1969. Increased Rating VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The VA Rating Schedule provides for rating an acquired psychiatric disability under a General Rating Formula for Mental Disorders, at 38 C.F.R. § 4.130. The criteria under that formula for ratings of 30 percent and higher are as follows: 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. 100 percent 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 worklike setting); inability to establish and maintain effective relationships. 70 percent 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. 50 percent Occupational and social impairment with occasional decrease 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). 30 percent The Veteran's present appeal regarding his psychiatric disability is for ratings in excess of 30 percent from May 19, 2011, through May 6, 2019, and in excess of 50 percent from May 7, 2019. On VA examination in December 2012, the Veteran reported that after service he had trouble adjusting to post-military life. He related intrusive memories, nightmares, difficulty sleeping, irritability, and hypervigilance. He stated that he had angry outbursts and was overprotective of his family. He indicated that his acquired psychiatric disability symptoms likely contributed to his first marriage ending in divorce. He stated that those symptoms also strained his relationships with his children and his second wife. He reported that after service he worked as a steelworker for 24 years and as a warehouse worker for 12 years, and then retired. On examination the Veteran reported a sad mood. The examiner found that he had a logical thought process, fair insight, and good judgment. The examiner did not find indications of hallucinations, delusions, or frank paranoia. The examiner found that the Veteran's current symptoms included anxiety and chronic sleep impairment. As to the Veteran's impairment level, the examiner selected the choice from the criteria for a 0 percent rating, that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner noted that the Veteran's acquired psychiatric disability likely caused the end of his first marriage, but also noted that the Veteran had good relationships with his children and his second wife and that he had worked for 36 years without impairment related to his acquired psychiatric disability. On VA examination in March 2014, the Veteran reported that he continued to garden, do yard work, go fishing, and socialize with his wife, other family members, and friends. He indicated that he felt sad or depressed about 40 percent of the time. The examiner found that the Veteran's acquired psychiatric disability produced a depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and disturbances of motivation or mood. As to the Veteran's impairment level, the examiner selected the choice from the criteria for a 0 percent rating. On VA examination in March 2016, the Veteran reported good relationships with his second wife and with some of his grown children. He related that he had many friends. He indicated that he was in a group of fellow survivors of the shipwreck. He related feeling sad about those who died in the shipwreck. The examiner observed that the Veteran was oriented and had a calm affect and logical, coherent speech. There was no report or evidence of psychotic symptoms. The examiner expressed the opinion that the Veteran did not presently have a mental disorder. On VA examination in May 2019, the Veteran reported mild to moderate symptoms of anxiety, depression, paranoia, sleep problems, and obsessive thoughts. He related that he was frequently upset and experienced significant irritability and frustration. The examiner observed an agitated mood and flat affect, with intermittent distraction due to ruminating thoughts. The examiner noted that the Veteran did not express that he avoided reminders of the shipwreck. The examiner concluded that the appropriate diagnosis for his mental disorder was other specified trauma- and stressor-related disorder. The examiner selected an impairment level consistent with the criteria for a 10 percent rating, that there was occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or that the symptoms were controlled by medication. The Veteran has not asserted or indicated that from May 19, 2011, through May 6, 2019, his occupational and social impairment due to psychiatric disability rose to the level of reducing his reliability and productivity. Clinicians who treated and examined him during that period did not find that his occupational and social impairment due to psychiatric disability reduced his reliability and productivity. His disability picture did not meet or approach the criteria for a rating higher than 30 percent. The Board denies a rating in excess of 30 percent for that period. The Veteran has not asserted or indicated that from May 7, 2019, his occupational and social impairment due to psychiatric disability have produced deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Clinicians who have treated and examined him have not found that his occupational and social impairment due to psychiatric disability have produced deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. His disability picture has not met or approached the criteria for a rating higher than 50 percent. The Board denies a rating in excess of 50 percent. Accordingly, the criteria for higher ratings for an acquired psychiatric disability have not been met, and the claim is denied. TDIU VA regulations allow for the assignment of total disability ratings, where the rating under the rating schedule is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Entitlement to a TDIU depends on the impact of a veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as work history, education, and vocational training. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). A TDIU may be assigned, on an extra-schedular basis, to a veteran who does not meet the rating schedule requirements for a TDIU, if the veteran, by reason of his or her service-connected disabilities, is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(b). In a March 2020 rating decision, the RO granted, effective June 17, 2019, service connection and a 100 percent disability rating for the Veteran's prostate cancer. The Veteran's appeal for a TDIU thus applies to the period before June 17, 2019, when his combined disability rating was less than total. Prior to June 17, 2019, the Veteran's only service-connected disability was PTSD or other specified trauma- and stressor-related disorder. It was rated at 30 percent from May 19, 2011, and 50 percent from May 7, 2019. As that disability was rated at less than 60 percent, the criteria for a TDIU under 38 C.F.R. § 4.16(a) were not met. A TDIU may be nonetheless be assigned, on an extra-schedular basis, under 38 C.F.R. § 4.16(b), if the Veteran's service-connected psychiatric disability made him unable to secure or follow a substantially gainful occupation. The Veteran has reported that he retired in 2002 because of arthritis. He has stated that while he was working his PTSD did not affect his work. He has not indicated that after retirement his PTSD prevented him from, or significantly impaired him in, performing household tasks and attending events outside his home. Clinicians who have treated and examined him have not found that his psychiatric disorder has prevented him from, or significantly impaired him in, performing household tasks and attending events outside his home. The evidence does not present a disability picture that warrants referral for consideration of a TDIU on an extra-schedular basis. The Board denies a TDIU for the period before June 17, 2019. Accordingly, the criteria for a TDIU prior to June 17, 2019, have not been met, and the claim is denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. J. Kunz, 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.