Citation Nr: A21020232 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 210816-178976 DATE: December 17, 2021 ORDER An initial rating in excess of 30 percent prior to November 30, 2020 for an acquired psychiatric disorder is denied. A rating in excess of 50 percent for an acquired psychiatric disorder from November 30, 2020 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 30, 2020, 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. 2. From November 30, 2020, the Veteran's acquired psychiatric disorder resulted in in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; and occupational and social impairment with reduced reliability and productivity from November 30, 2020 thereafter; but not occupational and social impairment with deficiencies in most areas. 3. The preponderance of the evidence is against a finding that the Veteran's service connected disabilities render him unemployable. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for an acquired psychiatric disorder prior to November 30, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9432. 2. The criteria for a rating in excess of 50 percent for an acquired psychiatric disorder from November 30, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9432. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served from May 1976 to April 1977. These matters were appealed to the Board of Veterans Appeals (Board) from an August 2021 VA Form 10182 (NOD) under the Direct Review appeal lane. The Board notes that there are two separate AOJ decisions on appeal each with discrete evidentiary periods that can be reviewed by the Board. The Veteran elected Higher-Level Review (HLR) of the February 13, 2020 rating decision that assigned an initial 30 percent rating for an acquired psychiatric disorder. A 30 percent rating was confirmed and continued in an April 2021 HLR rating decision and this issue was appealed to the Board. Because of the election of HLR, the April 2021 HLR rating decision could only consider the evidence of record at the time of the February 13, 2020 rating decision. Consequently, the Board may also only consider evidence of record up until that date. In addition, the Veteran submitted a May 12, 2020 VA Form 21-8940 Application for Increased Compensation Based on Unemployability (TDIU application) that was construed as new claim for an increased rating for an acquired psychiatric disorder. A July 31, 2021 rating decision granted an increased rating from 30 percent to 50 percent for an acquired psychiatric disorder. The Veteran appealed this rating decision to the Board and claimed for a rating in excess of 50 percent and an earlier effective date for the rating increase to 50 percent. Under the Direct Review appeal lane, the Board may only consider the evidence considered by the AOJ in its July 31, 2021 rating decision. The Board notes that the earlier effective date for the rating increase from 30 percent to 50 percent for an acquired psychiatric disorder claim essentially constitutes a request for a staged increased rating prior to the date of increase and is implicitly considered in the Board's analysis below. Increased Ratings Legal Criteria Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's acquired psychiatric disorder is rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as, for example: 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. A 70 percent rating 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, for example: 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. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example: 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 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, recent events). 38 C.F.R. § 4.130. The symptoms listed in VA's general rating formula for mental disorders are not an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board is precluded from differentiating between symptoms attributable to service-connected and nonservice-connected mental health disorders absent clinical evidence clearly showing such distinction. Mittleider v. West, 11 Vet. App. 181, 182 (1998). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the time of examination. Further, a rating cannot be assigned solely based on social impairment. 38 C.F.R. § 4.126 (b). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App, 119 (1999). 1. An initial rating in excess of 30 percent for an acquired psychiatric disorder Factual Background & Analysis The Veteran contends that his service-connected acquired psychiatric disorder warrants an initial rating in excess of 30 percent. A November 2017 VA telemedicine psychiatric interview noted no thoughts of self-harm or homicidal ideation. The Veteran did not report any feelings of hopelessness or helplessness. A November 2017 VA psychiatric evaluation notes a history of sexual trauma while serving in a civilian jail during his service. The Veteran reported problems with severe depression, manic episodes, motor agitation, rapid speech, and racing thoughts. The Veteran further stated that he left his job and his wife left him recently. He reported being verbally and emotionally abused on his last job as a maintenance worker at a retirement center. The Veteran described his mood as stable and reported some anxiety related to his living situation and moderate depression. He endorsed some problems with distractibility. The Veteran underwent a VA psychological evaluation in July 2019. The Veteran was diagnosed with bipolar disorder. The Veteran reported being married several times. At the time of the examination, he was living alone and reported a history of being intermittently outgoing and withdrawn. He reported no difficulty being in public places and when dealing with others. He stated that he relates to his brother who is his closest relative. He is occasionally irritable when feeling depressed or withdrawn. The examiner noted mild psychosocial maladjustment at the present time. At the time of the examination the Veteran was noted to be working full-time, his supervisor had recently told him that has been more irritable and moodier of late. The examiner noted that his bipolar disorder would not be expected to cause more than mild to moderate occupational difficulties. Symptoms noted to actively apply to the Veteran's diagnosis were depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner did not directly observe any behavioral abnormalities. The examiner summarized the degree of occupational and social impairment caused by the Veteran's service-connected acquired psychiatric disorder as an 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. After a thorough review of the evidence, the Board finds that an initial rating in excess of 30 percent for an acquired psychiatric disorder is not warranted. Notably, at the time of the July 2019 VA psychological examination the Veteran reported no difficulty being in public places and when dealing with others. The examiner noted only mild psychosocial maladjustment. Moreover, the Veteran was noted to be working full-time with only some work difficulties due to depressed mood and heightened irritability. The examiner noted that his bipolar disorder would not be expected to cause more than mild to moderate occupational difficulties. Crucially, a higher 50 percent rating is warranted under the general criteria for occupational and social impairment with reduced reliability and productivity. Here, the July 2019 VA examiner summarized the degree of occupational and social impairment caused by the Veteran's service-connected acquired psychiatric disorder as causing only an 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 Board affords the July 2019 VA examiner's assessment of the severity of the Veteran's acquired psychiatric disorder substantial probative weight because it was recorded following a diagnostic evaluation by a mental health specialist with experience and expertise in diagnosing and assessing the nature and severity of psychiatric disabilities. Additionally, the evidence does not reflect that during this period on appeal a mental health clinician ever assessed the Veteran's acquired psychiatric disorder as causing occupational and social impairment with reduced reliability and productivity. To the contrary, the evidence during this appeal period tends to demonstrate mostly normal social and occupational functioning. Therefore, the preponderance of the evidence is weighted against finding that the Veteran's acquired psychiatric disorder warrants an initial rating in excess of 30 percent and, to that extent, this appeal must be denied. 2. A rating in excess of 30 percent for an acquired psychiatric disorder prior to November 30, 2020 and in excess of 50 percent from that date thereafter Factual Background & Analysis The Veteran submitted a VA Form 21-8940 TDIU application that was received on May 12, 2021 and was treated as an increased rating claim. An increased rating from 30 percent to 50 percent was granted for an acquired psychiatric disorder effective November 30, 2020 (date a VA Form 21-0966 Intent to File was received) in a July 2021 rating decision. VA treatment records dated from September 2020 to June 2021 document numerous telehealth mental status examinations in which the Veteran was always appropriately oriented to person, time, and place. Clinicians consistently noted that during these interviews the Veteran exhibited normal speech, thought process, thought content, mood, affect, concentration, insight/judgment, and no suicidal or homicidal ideation. A June 2021 VA mental health outpatient interview did note a report of intrusive memories, uncontrolled anxious thoughts, no report of panic attacks but feelings of being "trapped and surrounded. The Veteran underwent a VA psychological examination in July 2021. He reported to the examiner that his main issue is increased irritability and that he is occasionally less motivated to participate in enjoyable activities. The examination report reflects that the Veteran was recently fired from his job due to an inability to get along with his supervisors and coworkers. The examiner noted that the Veteran would have moderate to severe occupational impairment in most full-time situations because of the need to interact with others and would likely do reasonably well in a job that required little interaction with others. The Veteran was noted to have continued difficulty with a sleep disorder, irritability, depression, anxiety, occasional panic attacks, attention and concentration problems, and impulse control issues. There was no evidence of psychosis or suicidal ideation. The Veteran self-medicates with cannabis. Symptoms noted to actively apply to the Veteran's diagnosis were depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner did not directly observe any behavioral abnormalities. The examiner remarked that the Veteran's bipolar disorder had become somewhat more intrusive since his last examination in terms of occupational adjustment, despite continuing ongoing treatment. After a thorough review of the evidence, the Board finds that a rating in excess of 50 percent for an acquired psychiatric disorder is not warranted. In that respect, the preponderance of the evidence is against a finding that the Veteran's service-connected acquired psychiatric disorder caused deficiencies in most areas of functioning including such as work, school, family relations, judgment, thinking, or mood. The Board observes that the Veteran's service-connected acquired psychiatric disorder has progressed to cause significant occupational impairment. The July 2021 VA examiner emphasized that the Veteran suffers from moderate to severe occupational impairment in most full-time situations because of the need to interact with others. Moreover, the Veteran reported to this examiner that he was recently fired because of his inability to get along with his supervisor. His diagnosis was also characterized by a difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and impaired impulse control, such as unprovoked irritability with periods of violence, symptoms that are emblematic of a higher 70 percent rating. However, the presence of these symptoms which mostly evidence significant occupational impairment do not in and of themselves demonstrate that the criteria for a higher 70 percent rating have been met. To the contrary, the inquiry is whether the Veteran's symptoms have caused deficiencies in most areas of functioning. In that respect, the many VA telehealth mental status examinations of record during this period consistently indicate normal patterns of speech, thought process, thought content, mood, affect, concentration, and insight/judgment. The July 2021 VA examiner did not indicate any observed deficiencies in judgment, thinking, or mood. The examiner noted that the Veteran would be able to handle the technical aspects of his job and that his issue is primarily with interacting with coworkers. Moreover, the July 2021 VA examination report otherwise does not document significant social deficiencies including with family relations, despite reports of increased irritability and an intermittent lack of motivation to participate in enjoyable activities. Notably, this examiner assessed the Veteran's acquired psychiatric disorder as causing occupational and social impairment with reduced reliability and productivity, a degree of impairment which corresponds to a 50 percent rating. The Board affords this examiner's assessment of the severity of the Veteran's acquired psychiatric disorder substantial probative weight because it was recorded following a diagnostic evaluation by a mental health specialist with experience and expertise in diagnosing and assessing the nature and severity of psychiatric disabilities. In sum, the Board finds the preponderance of the evidence is against finding that the Veteran's acquired psychiatric disorder causes symptoms and deficiencies approximating occupational and social impairment with deficiencies in most areas contemplated by a higher 70 percent rating and, to that extent, the appeal must be denied. Finally, the Board emphasizes that the July 2021 VA examination report is the earliest medical evidence which shows a worsening of symptoms such that the increase in rating from 30 percent to 50 percent for an acquired psychiatric disorder was warranted. Therefore, the assigned effective date of that increase being November 30, 2020, the date the VA Form 21-0966 Intent to File was received, is a generous beginning date for this currently assigned staged rating and the Board finds no factual basis for disturbing it. Fenderson v. West, 12 Vet. App, 119 (1999). 3. Entitlement to a TDIU Legal Criteria VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. See 38C.F.R. § 4.16. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the Veteran's history, education, skill and training, (b) the Veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Under 38 C.F.R. § 4.16 (a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38C.F.R. §4.16 (a). Where a veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38C.F.R. §4.16 (b). The Board is unable to award an extraschedular TDIU in the first instance, and instead must first determine whether referral to VA's Director of Compensation Services is warranted. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The determination of a referral is dependent on "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Factual Background & Analysis The Veteran's service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16 (a). The pertinent inquiry is whether the record contains plausible evidence that the Veteran's service-connected disabilities, alone, precluded the Veteran from securing and following substantially gainful employment sufficient to refer the matter to VA's Director of Compensation Services for extraschedular TDIU consideration. After a complete review of the record, the Board finds that extraschedular referral is not warranted, as explained below. The Veteran is only service-connected for an acquired psychiatric disorder. The Veteran provided a May 2021 TDIU application which reflects two years of high school education and specialized training with electronics and computers. From June 2016 to May 2020 the Veteran held various jobs including telecommunication technician, maintenance, forklift operation, and vendor technician. The evidence reflects that the Veteran last worked full-time as a vendor technician until May 2020. Regarding how the Veteran's service-connected acquired psychiatric disorder would impact his employability, the July 2021 VA examiner opined, "[the Veteran] was as recently fired from a job because of not being able to get along with his supervisors and coworkers. This has been a continuing issue over the years as getting somewhat worse recently. He generally does not miss work but gets to the point of throwing things and becoming physically agitated although not physically assaultive. Could handle the technical aspects of his job. He would be expected to have moderate to severe occupational impairment in most full-time situations with the normal need to interact with others. He probably would do reasonably well in a job that required little interaction with others." A June 2021 VA Form 21-4192 (Request for Employment Information) completed by the Veteran's last employer indicated that he was terminated due to poor job performance and misconduct and that they were unaware of any disabilities. After a full review of the evidence, the Board finds that the Veteran's service-connected disabilities do not present physical or mental limitations that prevent him from obtaining and maintaining an occupation that requires minimal social interaction with others. The Board finds that the July 2021 VA psychological examiner's opinion that the Veteran could perform reasonably well in such circumstances to be of high probative value based on this examiner's expertise as a psychiatrist in assessing impairment caused by psychiatric disorders. In the case at hand, the Board acknowledges that any job requiring substantial human contact would not be feasible for him due to his service-connected psychiatric disability. However, the Board does find the Veteran would be qualified for several physical jobs which would provide him a living wage. Additionally, the Board notes that he has specialized training with electronics and computers. The Board envisions potential employment in data entry, information technology, or in electronics repair. Additionally, he would be qualified to work in a job which required hand assembly, quality control, or packaging. The Board observes that the Veteran has no service-connected physical disabilities and thus he is not limited in standing or sitting for long periods of time. Based on the analysis above, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected disabilities have precluded the Veteran from securing and following substantially gainful employment consistent with his occupational history and educational attainment. Accordingly, the Veteran's claim shall not be referred for extraschedular consideration, and entitlement to a TDIU is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.