Citation Nr: A21019718 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 210908-183721 DATE: December 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected acquired psychiatric disorder diagnosed as other specified trauma and stressor related disorder (acquired psychiatric disorder), from February 21, 2019, is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s)(1) is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial disability rating higher than 70 percent for acquired psychiatric disorder is denied. FINDINGS OF FACT 1. From February 21, 2019, the Veteran was unemployable due to service-connected acquired psychiatric disorder. 2. From February 21, 2019, the Veteran has a service-connected disability rated as total and additional disabilities ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments and bodily systems. 3. Throughout the appeal period, the symptoms and overall impairment caused by the Veteran's service-connected acquired psychiatric disorder have not more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a TDIU due to service-connected acquired psychiatric disorder from February 21, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. The criteria for SMC pursuant to 38 U.S.C. § 1114(s)(1) from February 21, 2019, are met. 38 U.S.C. § 1114(s)(1); 38 C.F.R. § 3.350(i)(1). 2. The criteria for an initial disability rating higher than 70 percent for acquired psychiatric disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to October 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May and June 2021 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The May 2021 rating decision denied entitlement to a TDIU, and assigned a 10 percent evaluation for the Veteran's other specified trauma and stressor disability from February 21, 2019, and a 70 percent evaluation from September 11, 2019. In the June 2021 rating decision, the Agency of Original Jurisdiction (AOJ) found that there was clear and unmistakable error in the May 2021 rating decision when it provided an effective date of September 11, 2019 for the 70 percent evaluation for other specified trauma and stressor disability. The June 2021 rating decision corrected that error by assigning the 70 percent evaluation from February 21, 2019. Favorable findings in those decisions included: the Veteran met the schedular criteria for entitlement to a TDIU, and the Veteran was unemployed. 38 C.F.R. § 3.104(c). In an September 2021 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182), the Veteran timely appealed the May and June 2021 rating decisions and selected a hearing with a Veterans Law Judge (VLJ). 38 C.F.R. § 20.202(b)(2). The Veteran had a pending hearing scheduled; however, on December 8, 2021, the Veteran's attorney withdrew his hearing request. Thus, the Board will consider the evidence submitted at the time of the May and June 2021 rating decisions, and the evidence submitted within 90 days following receipt of the withdrawal. 38 C.F.R. § 20.302(c). As a final preliminary matter, the issue of an earlier effective date for the grant of service connection for other specified trauma and stressor disability was included on the September 2021 VA Form 10182. However, the benefit sought has been granted in full, as shown by the rating decisions culminating in the June 2021 rating decision that found clear and unmistakable error in regard to the effective date of the 70 percent disability rating for other specified trauma and stressor disability. Thus, as the benefit sought has been granted in full, the Board will not proceed with adjudication of this issue. Entitlement to a TDIU due to service-connected acquired psychiatric disorder The Veteran submitted a Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) in February 2020. However, the claim for a TDIU was part of the claim for a higher initial disability rating for other specified trauma and stressor disability that was submitted on February 21, 2019 and was still pending at that time. Rice v. Shinseki, 22 Vet. App. 447 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). As evidence of unemployability due to other specified trauma and stressor disability, to include the February 2020 VA Form 21-8940, was submitted during the course of the appeal for a higher initial disability rating for other specified trauma and stressor disability, TDIU is part and parcel of this claim, and the appeal period for the grant of a TDIU began February 21, 2019, the date of submission of the Intent to File a Claim (VA Form 21-0966). VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently in receipt of service connection for acquired psychiatric disorder, evaluated at 70 percent disabling from February 21, 2019; left upper extremity peripheral neuropathy, evaluated at 10 percent from October 31, 2008, and 30 percent from February 21, 2019; right upper extremity peripheral neuropathy, evaluated at 10 percent from October 31, 2008, and 20 percent from February 21, 2019; diabetes mellitus, evaluated at 20 percent from August 22, 2002; right lower extremity peripheral neuropathy, evaluated at 10 percent from October 31, 2008; and left lower extremity peripheral neuropathy, evaluated at 10 percent from October 31, 2008. The Veteran's combined disability rating is 20 percent from August 22, 2002, 50 percent from October 31, 2008, and 90 percent from February 21, 2019. Thus, he meets the schedular criteria from February 21, 2019. The remaining question is whether the Veteran's service-connected acquired psychiatric disorder disabilities preclude gainful employment for which his education and occupational experience may otherwise qualify him from February 21, 2019, the date of the grant of service connection for other specified trauma and stressor disability. The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. 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 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but rather a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). For the following reasons, the Veteran was unemployed and unemployable due to his service-connected acquired psychiatric disorder from February 21, 2019. The Veteran's February 2020 VA Form 21-8940 shows that he was last employed in June 1995 as a manufacturing representative, where he worked for 16 years. He completed one year of college with no other education or training. In June 2020, a private psychologist found that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood due to his acquired psychiatric disability. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, panic attacks that occur weekly or less often, near continuous panic or depression, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, impaired impulse control, intermittent ability to perform daily living activities, and neglect of personal appearance and hygiene. The private psychologist additionally found that the Veteran would be unable to work at a full-time job for eight hours a day and five days a week. In an April 2021 letter, the Veteran's treating VA counselor noted that the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, impaired judgement, flattened affect, memory loss, inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, including work, impaired impulse control, and neglect of personal appearance and hygiene. Based upon his current level of symptoms related to his acquired psychiatric disability, his concentration levels would be severely impaired. These psychological symptoms would result in him being off task at least 25 percent of a typical workday and/or missing greater than four workdays per month. Therefore, it was his opinion that the Veteran would have a significant problem obtaining/maintaining full-time work of any kind. Due to the aforementioned symptoms, his psychological symptoms have prevented work since he last worked full-time. Thus, it follows that the Veteran is entitled to an award of TDIU from February 21, 2019, the date of the grant of service connection for acquired psychiatric disorder, as the Veteran's VA Form 21-8940, June 2020 private psychologist's report, April 2021 letter from VA counselor, and the other evidence of record, reflects that he was unemployed since approximately 1995 and unemployable due to his service-connected acquired psychiatric disorder. For the foregoing reasons, entitlement to a TDIU due to service-connected acquired psychiatric disorder is therefore warranted from February 21, 2019. Entitlement to SMC pursuant 38 U.S.C. § 1114(s)(1) Special monthly compensation is warranted where the Veteran has a service-connected disability rated as total and additional service-connected disabilities ratable at 60 percent or more. 38 U.S.C. § 1114(s)(1). The additional service-connected disabilities must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). Significantly, "section 1114(s) does not limit 'a service-connected disability rated as total' to only a schedular rating of 100%, and the Secretary's current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating." Bradley v. Peake, 22 Vet. App. 280, 293 (2008). That is the situation in this case, as the Board has granted a TDIU based on the Veteran's acquired psychiatric disorder alone. Moreover, the Veteran has also been in receipt of service connection for left upper extremity peripheral neuropathy, evaluated at 30 percent; right upper extremity peripheral neuropathy, evaluated at 20 percent; diabetes mellitus, evaluated at 20 percent; right lower extremity peripheral neuropathy, evaluated at 10 percent; and left lower extremity peripheral neuropathy, evaluated at 10 percent, since the February 21, 2019 effective date of the TDIU based on the acquired psychiatric disorder. These disabilities combine to greater than 60 percent under 38 C.F.R. § 4.25 and are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Consequently, entitlement to SMC pursuant to 38 U.S.C. § 1114(s)(1) is warranted from February 21, 2019. Perciavalle v. Wilkie, 32 Vet. App. 117, 122 ("SMC benefits are to be accorded when a veteran becomes eligible without need for a separate claim"). Entitlement to an initial disability rating higher than 70 percent for other specified trauma and stressor disability Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. The Veteran's other specified trauma and stressor disability is rated 70 percent from February 21, 2019, the date of claim, under DC 9410. 38 C.F.R. § 4.124a, 4.130. Under the General Rating Formula for Mental Disorders, a 70 percent disability rating is warranted when there is 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); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent disability rating is warranted when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. Under the General Rating 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 symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). During a July 2019 VA examination, a VA psychiatrist found that a mental condition was diagnosed, but symptoms were not severe enough to interfere with occupational or social functioning or to require continuous medication. The Veteran reported during the examination that he had two sons and two daughters and was in a long-term relationship. He was a manufacturing representative and closed his business in the 1990s. He indicated that he had a boat, gardened, and kept himself busy. The Veteran endorsed symptoms of anxiety. He denied current suicidal or homicidal ideation, intents, or plans, and there was no evidence of any paranoid delusions. In June 2020, a private psychologist noted in a Disability Benefits Questionnaire (DBQ) that the Veteran experienced trouble trusting others and a lack of emotion. The private psychologist found that the Veteran experienced occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, and/or mood. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, panic attacks that occur weekly or less often, near continuous panic or depression, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, impaired impulse control, intermittent ability to perform daily living activities, and neglect of personal appearance and hygiene. The private psychologist additionally found that the Veteran would be unable to work at a full-time job for eight hours a day and five days a week. During a July 2020 VA examination, the Veteran endorsed symptoms of anxiety and chronic sleep impairment. The Veteran denied suicidal or homicidal ideation, and hallucinations or delusions were not reported. The VA psychologist found that the Veteran experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by medication. In an April 2021 letter, the Veteran's treating VA counselor noted that the Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, impaired judgement, flattened affect, memory loss, inability to establish and maintain effective relationships, difficulty adapting to stressful circumstances, including work, impaired impulse control, and neglect of personal appearance and hygiene. For the following reasons, the symptoms and impairment of the Veteran's other specified trauma and stressor disability did not more nearly approximate the criteria for an initial disability rating of 100 percent. The Veteran endorsed symptoms throughout the appeal period of depressed mood, anxiety, suspiciousness, chronic sleep impairment, panic attacks that occurred weekly or less often, near continuous panic or depression, mild memory loss, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a worklike setting, inability to establish and maintain effective relationships, impaired impulse control, intermittent ability to perform daily living activities, and neglect of personal appearance and hygiene. In addition, the evidence of record shows that, throughout the appeal period, the Veteran experienced occupational and social impairment with deficiencies in most areas. These symptoms and impairment are consistent with the current initial disability rating of 70 percent. The Veteran is not, however, entitled to a higher, 100 percent disability rating throughout the appeal period. The evidence of record did not show that the Veteran experienced symptoms such as grossly inappropriate behavior, and his thought content did not appear obsessive, delusional, or impaired to reality. Moreover, the Veteran denied suicidal or homicidal ideation, and the evidence of record did not include reports of hallucinations or delusions. Moreover, the record reflects that overall impairment did not more nearly approximate total social impairment. In this regard, the Veteran engaged in some social interactions with his family and was in a long-term relationship. This reflects that the impairment caused by the Veteran's symptoms did not more nearly approximate the total social impairment required for a 100 percent disability rating. In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). As explained above, the Board has found that that the evidence of record shows that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate) to result in the occupational and social impairment with deficiencies in most areas required for disability rating of 70 percent throughout the appeal period. 38 C.F.R. § 4.130. However, he did not show symptoms of the type and extent, frequency, or severity (as appropriate) to result in total occupational or social impairment required for the disability rating of 100 percent (exclusive of any period of temporary total rating) as he had some social interactions and relationships, reflecting that his overall level of impairment did not more nearly approximate total occupational and social impairment. Id. The evidence of record throughout the appeal period reflects that the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate an initial disability rating of 70 percent, but no higher, for his service-connected other specified trauma and stressor disability. As the preponderance of the evidence is against a higher initial disability rating during the entire appeal period, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. (Continued on the next page) The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, other than entitlement to a TDIU discussed below, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.