Citation Nr: 21073256 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 15-12 068 DATE: December 8, 2021 ORDER Prior to July 29, 2020, entitlement to an increased initial rating of 50 percent for a trauma- and stressor-related adjustment-like disorder, with prolonged duration of more than six months without prolonged duration of the stressor, with moderate alcohol use disorder in partial remission (hereinafter "acquired psychiatric disorder"), is granted. Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT During the entire appeal period, the Veteran's acquired psychiatric disorder has more nearly approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood and difficulty in adapting to stressful circumstances; more severe occupational and social impairment has not been established. CONCLUSIONS OF LAW 1. Prior to July 29, 2020, the criteria for an increased initial rating of 50 percent for an acquired psychiatric disorder were met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9499-9411 (2020). 2. The criteria for an initial rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9499-9411 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 2006 to February 2014. Among his medals and decorations were campaign medals for his service in both Afghanistan and Iraq. The Veteran initially requested a Board of Veterans' Appeals (Board) hearing regarding these matters on his March 2015 substantive appeal. In November 2016, he withdrew his request for a hearing. During the pendency of the appeal, the Regional Office (RO) issued a rating decision in August 2020 that granted an increased 50 percent rating for the Veteran's acquired psychiatric disorder, effective July 29, 2020. Because a higher schedular rating is available for this disorder and because the Veteran is presumed to seek the maximum available benefit, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to an increased initial rating for an acquired psychiatric disorder The Veteran seeks an increased initial rating for his service-connected acquired psychiatric disorder. He is currently in receipt of a 30 percent rating prior to July 29, 2020, and a 50 percent rating thereafter. The Veteran's symptoms are rated under 38 C.F.R. § 4.130, DC 9499-9411. However, all psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 30 percent rating is warranted for 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, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent rating is warranted for 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 evaluation is warranted 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Finally, a total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. This appeal dates from the Veteran's original claim for service connection, which he filed in February 2014. In April 2014, the Veteran was afforded a VA Compensation and Pension (C&P) examination. The report reflects the Veteran's descriptions of suffering from a variety of mental health symptomatology since his first deployment to Iraq in 2008. He reported anxiety and hypervigilance, particularly when triggered by "reminders" such as sirens and helicopter noises. He also reported experiencing illusions (the examiner clarified that these were not hallucinations) pertaining to his deployment, such as seeing Iraqi children playing in his street who were actually local children playing near his home in the United States. The Veteran reported a history of alcohol abuse, which had resulted in legal problems, including being "forced out of the Army." He reported experiencing hallucinations of an Iraqi patrol coming after him on two occasions, in 2012 and in January 2014; however, he noted that these occurred in the context of his drinking heavily, and he denied any other symptoms indicating psychosis. The Veteran stated that he had cut down on his alcohol consumption since February 2014. He reported that he enjoyed a great relationship with his wife of three years, and that they were expecting their first child. He was enrolled in technical school full time; he denied experiencing significant problems in school and in fact reported that he was receiving straight A's. The examiner determined that the Veteran's overall mental health symptomatology resulted in 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; symptoms controlled by medication. The examiner identified specific symptoms of anxiety, suspiciousness, and chronic sleep impairment, as well as the additional symptoms noted above, such as the Veteran's history of deployment-related illusions, history of hallucinations while intoxicated, and problematic alcohol use patterns. In the Veteran's September 2014 notice of disagreement (in which he appealed his initial 30 percent rating), he argued that he still had problems with alcohol abuse and suffered "severe" symptoms of posttraumatic stress disorder (PTSD) every day. In a March 2015 substantive appeal, the Veteran reported that he was unable to rest at night (admittedly in part due to his sleep apnea), which made his PTSD worse during the day. He also asserted that he had been unable to maintain employment due to his PTSD. He reported that he was taking medication for PTSD and was still in treatment at his local VA Medical Center. In February 2016, the Veteran was seen by a VA psychiatrist. Clinical notes from that visit reflect that the Veteran reported ongoing symptoms including insomnia, intrusive thoughts, flashbacks, combat-related nightmares, avoidance behavior, an inability to tolerate crowded situations, poor concentration, and exaggerated startle response. He denied suicidal or homicidal ideation, and there was no evidence of hallucinations, psychosis, or violent behavior. (The Veteran has received mental health treatment at his VA Medical Center throughout the period under review. Clinical records from these visits have been reviewed and are largely consistent with the C&P reports and lay statements discussed herein.) In July 2020, the Veteran underwent another C&P examination. After interviewing the Veteran and reviewing the record, the examiner concluded that the Veteran's acquired psychiatric disorder resulted 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 was working full time as an Aircraft Training Leader at Oceana and Norfolk Naval Station, and that he had been in this position for three years. The Veteran stated that he continued to see a psychiatrist every three months, but that he had stopped taking medications around January 2020. He reported partially stopping his alcohol consumption around that time but admitted that he still engaged in binge drinking multiple times per month. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting. As for behavioral observations, the Veteran was alert, attentive, and fully oriented; his speech was well-articulated and consistent with the content of the conversation; his affect was tense and irritable; and there was no indication of unusual thought processes or content. There was likewise no evidence of hallucinations, delusions, or significant cognitive impairment. The Veteran denied experiencing suicidal, homicidal, or psychotic ideation. The examiner noted that relationship difficulties related to heightened irritability was the Veteran's major functional limitation. In other words, the Veteran struggled to work well with others, which had the potential to impact his work performance. In an August 2020 rating decision the RO granted an increased 50 percent rating effective on July 29, 2020, the date of the C&P examination discussed above. The rating decision cited the newly identified symptoms of difficulty in adapting to stressful circumstances, including work or a work-like setting, and disturbances of motivation and mood, as evidence that the Veteran's condition had worsened. In February 2021, the Veteran's representative submitted an Informal Hearing Presentation (IHP), arguing that a uniform 50 percent rating was appropriate throughout the entire appeal period. The representative noted that the Veteran was pushed out of the Army in 2014 due to alcohol-related events, which a medical examiner subsequently linked to his service-connected acquired psychiatric disorder (the July 2020 C&P report includes a note from the examiner that the Veteran's alcohol use disorder was secondary to in-service trauma. Thereafter, a May 2021 C&P opinion confirmed that the Veteran's alcohol use disorder "developed as a response to his trauma-related symptoms as his attempt to reduce the discomfort of those symptoms"). The representative noted that the majority of the Veteran's symptoms were present prior to the July 29, 2020 effective date for the increased 50 percent rating, but that they were overlooked. In May 2021, the Veteran participated in a C&P tele-examination. The report reflects that the Veteran described suffering from anxiety on a daily basis, but that he was working and although work was stressful he was able to manage it. He also reported relationship difficulties, both at home and at work, due to his heightened irritability, which continued to be his main functional limitation. The Veteran described experiencing occasional intrusive symptoms, nightmares, and night terrors. He stated that he had mostly stopped drinking alcohol. He denied suicidal thoughts, stating that when he was really struggling with his emotions, he would call his psychiatrist. He stated that his biggest motivator was his kids: "I can't fall apart because I have them." The examiner determined that the Veteran's mental health symptomatology resulted 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. Current symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting. In terms of behavioral observations, the examiner noted that the Veteran was generally cooperative and responded to all questions asked; was oriented in all spheres; and exhibited appropriate affectthough his mood was somewhat tense. His thought content and processes showed no evidence of psychotic symptomatology; there was no tangentiality or circumstantiality noted. His speech was clear, coherent, and unpressured, and his insight and judgment were seen as fair. The Veteran denied any current intent or plan to harm himself or others. After a thorough review of the evidence, the Board first finds that, when resolving reasonable doubt in the Veteran's favor, his symptoms warrant an increased initial rating to 50 percent prior to July 29, 2020. In the aggregate, and particularly when considering the reports from the Veteran's C&P examinations and his lay statements regarding his symptoms, the Board finds that the evidence demonstrates that the Veteran's acquired psychiatric disorder more nearly approximates disability resulting in occupational and social impairment with reduced reliability and productivity. In short, the record fairly shows that the Veteran's acquired psychiatric disorder has caused, among other symptoms, disturbances of motivation and mood and difficulty in adapting to stressful circumstances, including work or a work-like setting. Furthermore, the Veteran's history of alcohol abuse, which has been medically linked to his service-connected disease, can reasonably be seen as negatively influencing impulse control and judgment, particularly in light of the Veteran's history of legal troubles. All of these symptoms are contemplated by the 50 percent rating criteria. The Board finds, however, that the Veteran's disability picture does not more nearly approximate occupational and social impairment with deficiencies in most areas. The record contains no evidence of illogical, obscure, or irrelevant thought content or speech; near-continuous panic or depression (as opposed to intermittent periods of panicincluding, for example, in crowded settingsor depression); violent behavior; or an inability to establish and maintain effective relationships. The Board notes that recently C&P examiners have identified the Veteran's difficulty in adapting to stressful circumstances, including at work. Furthermore, the Board acknowledges that the Veteran's irritability has been shown to have an adverse impact on his ability to function in both home and work environments. However, the record shows that the Veteran has been able to hold down a job for years at a stretch, thus indicating his ability to at least somewhat effectively manage stress in a work environment. While his disorder has made it difficult for him to work well with others, it has not precluded him from succeeding, as demonstrated by his longstanding employment and apparently healthy family life. As indicated above, the presence of just one of the symptoms listed in the higher rating criteria is not necessarily sufficient to warrant an increased rating. Rather, according to the Federal Circuit, "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Vazquez-Claudio, supra at 117. Here, that the Veteran has experienced "difficulty in adapting to stressful circumstances," in and of itself, is insufficient to justify a 70 percent rating. The Board further acknowledges that the Veteran has two documented instances of hallucination (as reported at his April 2014 C&P examination), which is a factor listed in the 70 percent rating criteria. Notwithstanding, the examination reports, outpatient records, and lay statements of record since the April 2014 C&P examination reflect that the Veteran has not reported such symptoms since early 2014. On the contrary, he has repeatedly denied experiencing delusions or hallucinations throughout the appeal period. The Board has also considered various other symptoms reported by the Veteran, including his social anxiety; none of these symptoms are of similar severity, duration, or frequency as to warrant a 70 percent rating under the relevant criteria. There is no evidence that the Veteran has experienced suicidal or homicidal ideation. The Veteran's acquired psychiatric disorder has not been shown to result in total occupational and social impairment, as the Veteran has been able to maintain close relationships (i.e., his marriage) and employment. He therefore cannot be considered "totally" impaired socially or occupationally. (Having difficulties at work due to mental health problems, as the Veteran has indicated, is not the same as being totally unable to function in a work environment.) Furthermore, the C&P examinations did not demonstrate that the Veteran suffered from gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or a persistent danger of hurting self or others. He has not been shown to have intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. No other symptoms of similar severity, frequency, and duration to those listed under the 100 percent criteria have been demonstrated. In sum, since the Veteran's claim for service connection was granted, the evidence of record demonstrates that the overall impairment caused by the Veteran's acquired psychiatric disorder more nearly approximates occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood and difficulty in adapting to stressful circumstances. The C&P reports of record include broad discussions of the severity, frequency, and duration of the Veteran's symptoms, with accompanying conclusions that his symptoms cause no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. More severe occupational and social impairment has not been established. Resolving all reasonable doubt in the Veteran's favor, an increased initial rating of 50 percent, but no higher, will be granted. REASONS FOR REMAND 2. Entitlement to a TDIU In the Veteran's March 2015 substantive appeal, he asserted that he was "unable to keep employment due to my PTSD." Thereafter, multiple C&P reports noted the adverse effects of the Veteran's acquired psychiatric disorder on his ability to function in work or work-like settings, notwithstanding the fact that he has been employed for long stretches during the appeal period. Where a claimant, or the record, raises the question of unemployability due to a disability for which an increased rating is sought, then a claim of entitlement to a TDIU is part and parcel of that claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO has not undertaken any development to ascertain whether the Veteran is entitled to a TDIU as part and parcel of the claim discussed above, nor has the RO adjudicated this issue. Moreover, the Veteran has not been provided notice regarding the possibility of a TDIU award. In the interest of fairness and in order to ensure compliance with VA's duty to assist, this matter must be remanded. The matter is REMANDED for the following action: Provide the Veteran with the requisite notice regarding the matter of entitlement to a TDIU. Notify the Veteran that, if he wishes to pursue this claim, he should complete and submit a formal VA TDIU claim form (VA Form 21-8940). Then undertake any additional development deemed necessary to establish the Veteran's employment status and capacity. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.