Citation Nr: 21075707 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 12-02 748A DATE: December 21, 2021 ORDER Entitlement to an evaluation of 50 percent, but no higher, for mood disorder with alcohol abuse in remission, prior to October 18, 2010, is granted. Entitlement to an evaluation in excess of 50 percent for mood disorder with alcohol abuse in remission and posttraumatic stress disorder (PTSD), from October 18, 2010 through March 19, 2019, is denied. Entitlement to an evaluation in excess of 70 percent for mood disorder with alcohol abuse in remission and PTSD, since March 19, 2019, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, effective August 13, 2014. REMANDED Entitlement to an initial evaluation in excess of 10 percent for right lower extremity lumbar radiculopathy is remanded. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity lumbar radiculopathy is remanded. Entitlement to an initial evaluation in excess of 10 percent for right upper extremity cervical radiculopathy is remanded. Entitlement to an initial evaluation in excess of 10 percent, prior to December 15, 2017, for left upper extremity cervical radiculopathy is remanded. Entitlement to an evaluation in excess of 20 percent, since December 15, 2017, for left upper extremity cervical radiculopathy is remanded. FINDINGS OF FACT 1. Prior to October 18, 2010, the severity, frequency, and duration of the Veteran's mood disorder with alcohol abuse in remission symptoms were productive of occupational and social impairment with reduced reliability and productivity; and did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. From October 18, 2010 until March 19, 2019, the severity, frequency, and duration of the Veteran's mood disorder with alcohol abuse in remission and PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity; and did not more closely approximate occupational and social impairment with deficiencies in most areas. 3. Since March 19, 2019, the severity, frequency, and duration of the Veteran's mood disorder with alcohol abuse in remission and PTSD symptoms have not more closely approximated total occupational and social impairment. 4. Since August 13, 2014, the Veteran's service-connected disabilities have precluded his ability to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 50 percent, but no higher, for mood disorder with alcohol abuse, prior to October 18, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 2. The criteria for an evaluation in excess of 50 percent for mood disorder with alcohol abuse in remission and PTSD, from October 18, 2010 through March 19, 2019, 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 9411. 3. The criteria for an evaluation in excess of 70 percent for mood disorder with alcohol abuse in remission and PTSD, since March 19, 2019, 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 9411. 4. Effective August 13, 2014, the criteria for a TDIU have 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 in the United States Marine Corps from September 1988 to June 2004. For his meritorious service, the Veteran was awarded (among other decorations) a Navy and Marines Corps Achievement Medal, Kuwait Liberation Medal, Southwest Asia Service Medal, and Sea Service Deployment Ribbon. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010 and February 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2021, the RO issued a rating decision which granted service connection for PTSD, effective October 18, 2010. The RO's rating decision then merged the Veteran's PTSD with his previously service-connected mood disorder with alcohol abuse in remission. The newly re-classified psychiatric disability, mood disorder with alcohol abuse in remission and PTSD, was then assigned an increased evaluation of 50 percent, effective October 18, 2010; and an increased evaluation of 70 percent, effective March 19, 2019. The Veteran has not contested the effective date for the award of service connection for PTSD; he had, however, previously perfected an appeal of the evaluation assigned to his mood disorder with alcohol abuse in remission. Accordingly, for the sake of clarity, the Board has listed the newly assigned staged evaluations for the Veteran's psychiatric disability as separate issues. The Board has previously remanded this case; for the issues decided herein, the Board finds substantial compliance with its remand instructions, as the Veteran's PTSD was subsequently granted after completion of the Board's remand directives, and as records were obtained and associated with the file. Increased Evaluation Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that his service-connected psychiatric disability warrants an increased evaluation. Prior to October 18, 2010, the Veteran's mood disorder with alcohol abuse in remission, had been assigned a 30 percent evaluation. See 38 C.F.R. § 4.130, Diagnostic Code 9435. From October 18, 2010 through March 19, 2019, the Veteran's mood disorder with alcohol abuse in remission and PTSD was assigned a 50 percent evaluation. Finally, since March 19, 2019, the Veteran's mood disorder with alcohol abuse in remission and PTSD has been assigned an evaluation of 70 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9411. 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 noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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 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. 1. Entitlement to an evaluation in excess of 30 percent, prior to October 18, 2010, for mood disorder with alcohol abuse in remission. 2. Entitlement to an evaluation in excess of 50 percent, from October 18, 2010 through March 19, 2019, for mood disorder with alcohol abuse in remission and PTSD. Based upon a longitudinal review of the record, the Board concludes that the Veteran's service-connected psychiatric disorder, prior to March 19, 2019, more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Thus, an evaluation of 50 percent, but no higher, is warranted for the Veteran's mood disorder with alcohol abuse in remission, prior to October 18, 2010; and an evaluation in excess of 50 percent is not warranted for his mood disorder with alcohol abuse in remission and PTSD at any time from October 18, 2010 through March 19, 2019. In this case, the Veteran's VA examinations and medical treatment records show that prior to March 19, 2019, his service-connected psychiatric disorder was manifested by symptoms of depressed mood, anxiety, suspiciousness, aggression, impulsiveness, anger and irritability, hypervigilance, exaggerated startle response, failure to conform to social norms, defiance of authority, affective instability, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. In May 2008, the Veteran underwent a psychiatric evaluation pursuant to his claim for Social Security disability benefits. The examination report noted that the primary content of the Veteran's thoughts was depressive and anxious in nature. It also noted that the Veteran's psychiatric disorder was manifested by difficulty sleeping, depressed mood, suicidal ideation, panic attacks occurring approximately twice per week, mood swings, periods of anxiety, and limited social activities. The report concluded with a diagnosis of mood disorder, not otherwise specified, and managed with mood stabilizing, antidepressant, and antianxiety medications. In May 2008, the Veteran underwent a VA examination for mental disorders. The VA examiner reviewed the evidence of record, including the Veteran's statements, prior to examination. The examiner also examined the Veteran and supported the opinions provided with a sufficient rationale. A mental status examination revealed the Veteran to be cooperative, friendly, and attentive, with unremarkable speech. He was oriented to person, time, and place; with depressed mood, intact attention, normal thought content and thought process. The VA examiner concluded that the Veteran's overall combined psychiatric symptoms 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. In October 2010, the Veteran underwent a private mental status examination. The private examination report noted that the Veteran was married and currently living with his spouse, along with four of his six children. The Veteran described his spouse as very supportive and understanding, but indicated that their marriage was rough at times. He indicated that he had completed high school, and had obtained an associate degree in business administration. Mental status examination revealed that he was alert, but vague, with a short attention span. His psychomotor activity was normal, and he exhibited relevant, coherent, and appropriate speech, but at a rapid pace. The Veteran's affect was normal, with reports of anxiety, anger, depression, and difficulty sleeping. The examination report also noted his complaints of cognitive disorder with memory loss, suicidal ideation with no current plans, mood swings, paranoid ideation, anger avoidance, and visual hallucinations for years. The private psychologist concluded that the Veteran's psychiatric disorder was best diagnosed as schizoaffective disorder, bi-polar type, along with PTSD. The report also noted that the Veteran attempted to compensate for all of this at first with alcohol and prescription drug addiction. Finally, the private psychologist noted that the Veteran's behavior was influenced by delusions, hallucinations, and paranoid ideations, all of which are service related. In August 2012, the Veteran underwent a VA examination for PTSD. The VA examiner reviewed the evidence of record, including the Veteran's statements, prior to examination. The examiner also examined the Veteran and supported the opinions provided with a sufficient rationale. The examination report noted that he had recently ended an approximate 8-month period of marital separation. The Veteran indicated that he spends most of his time with his spouse and the children that still live with him. The VA examiner noted the Veteran's symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The VA examiner concluded that the Veteran's overall combined psychiatric symptoms 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 underwent a VA examination for mental disorders in December 2017. The VA examiner reviewed the evidence of record, including the Veteran's statements, prior to the examination. The examiner also examined the Veteran and supported the opinions provided with a sufficient rationale. The report noted that the Veteran was married and helping to raise his children. The Veteran reported limited socialization, but indicated that he attends the activities of his children. He was described as bright, capable, pleasant, cooperative, and with very good social skills. The VA examiner also noted that the Veteran's mood disorder with alcohol abuse in remission and PTSD was manifested by symptoms of aggression, impulsiveness, anger, failure to conform to social norms, defiance of authority, affective instability, and disturbances of motivation and mood. The VA examiner concluded that the Veteran's overall combined psychiatric symptoms resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and bility to perform occupational tasks only during periods of significant stress. The Board finds that prior to March 19, 2019, the severity, frequency, and duration of the Veteran's psychiatric symptoms overall most closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. Although the record reflects some history of suicidal ideation at different times during this period, at no point did the overall severity of this condition approximate symptoms such 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 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. Accordingly, an evaluation of 50 percent, but no higher, is warranted for the Veteran's mood disorder with alcohol abuse in remission, prior to October 18, 2010. Moreover, the preponderance of the evidence is against an evaluation in excess of 50 percent for his mood disorder with alcohol abuse in remission and PTSD at any time prior to March 19, 2019. 3. Entitlement to an evaluation in excess of 70 percent, since March 19, 2019, for mood disorder with alcohol abuse in remission and PTSD. Based upon a longitudinal review of the record, the Board concludes that the Veteran's mood disorder with alcohol abuse in remission and PTSD symptoms since March 19, 2019, have not caused the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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 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 The Veteran underwent a VA examination for PTSD in March 2019. The VA examiner reviewed the evidence of record, including the Veteran's statements, prior to examination. The examiner also examined the Veteran and supported the opinions provided with a sufficient rationale. The examination report noted the Veteran's psychiatric symptoms of anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation, and impaired impulse control. The report noted that the Veteran was currently going through a divorce, and that he was currently living in a home that he and his new girlfriend are purchasing together. He indicated that he has been in a romantic relationship with his girlfriend for the past year, and that they get along great. He reported that he maintains contact with his three oldest children, and that he gets along great with his three youngest children. The Veteran indicated that he hasn't worked since 2013 due to back pain. Overall, the VA examiner opined that his symptoms were best characterized as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In April 2021, the Veteran underwent a VA examination for PTSD. The VA examiner reviewed the evidence of record, including the Veteran's statements, prior to examination. The examiner also examined the Veteran and supported the opinions provided with a sufficient rationale. The examination report noted the Veteran's psychiatric symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, impairment of short- and long-term memory, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. The report noted that he has six children and that he is close to them. Overall, the VA examiner opined that his symptoms were best characterized as causing occupational and social impairment with reduced reliability and productivity. The Board finds the severity, frequency, and duration of the Veteran's psychiatric symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The symptoms which were reported are similar to those contemplated by the assigned 70 percent rating during this time frame. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's psychiatric symptoms resulted in the level of impairment required for a 100 percent rating at any point since March 19, 2019. The criteria for a 100 percent or higher rating are not met during this period and the appeal must be denied. 4. Entitlement to a TDIU is granted effective August 13, 2014 The RO has already granted the Veteran's claim for a TDIU, and it has established an effective date of November 20, 2015. The RO based its effective date on the date that the Veteran submitted an informal application for a TDIU. Considering that the RO has already determined that the Veteran meets the criteria for a TDIU, the Board finds that an extended discussion of whether that benefit is warranted is not necessary here. Instead, what is important is the effective date. Even though the Veteran may only have submitted his claim in 2015, the record shows that his last day of gainful employment was August 12, 2014, at which point the Veteran was terminated from his job in automobile parts sales. Because entitlement to a TDIU is part and parcel of every increased rating claim when found to be related in part to the ratings on appeal, and as the Veteran's TDIU is based in part on his claim for an increased rating for his psychiatric disorders, the Board finds an earlier effective date of August 13, 2014 (the date following his previous gainful employment) is warranted. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity lumbar radiculopathy is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity lumbar radiculopathy is remanded. 3. Entitlement to an initial evaluation in excess of 10 percent for right upper extremity cervical radiculopathy is remanded. 4. Entitlement to an initial evaluation in excess of 10 percent for left upper extremity cervical radiculopathy, prior to December 15, 2017, is remanded. 5. Entitlement to an evaluation in excess of 20 percent for left upper extremity cervical radiculopathy, since December 15, 2017, is remanded. The most recent examinations of the Veteran's upper and lower radiculopathy were conducted in December 2017. Since that time, the Veteran has alleged these conditions have worsened. Moreover, a review of the Veteran's December 2017 VA examinations revealed findings which appear internally inconsistent. For instance, the Veteran's December 2017 VA examination of the back noted that his bilateral lower extremity radiculopathy exhibited symptoms of severe constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness. The examiner concluded, however, that the severity of the Veteran's radiculopathy overall was mild for both the right and left lower extremity. The December 2017 VA examination of the neck noted symptoms of moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness involving the upper and middle radicular nerve roots in the right and left upper extremity. Overall, however, the VA examiner found the Veteran's right upper extremity radiculopathy to be mild and his left upper extremity radiculopathy to be moderate in severity. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected radiculopathy of the bilateral, upper and lower extremities. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Yates, 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.