Citation Nr: 21007415 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 12-07 705 DATE: February 9, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent for pain disorder associated with both psychological factors and a general medical condition is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s symptoms more closely approximate occupational and social impairment with reduced reliability and productivity. 2. The evidence of record reflects that the Veteran’s service-connected pain disorder does not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for pain disorder associated with both psychological factors and a general medical condition are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9422. 2. The criteria for a total disability rating based on individual unemployability due to service-connected disability are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19; Rice v. Shinseki, 22 Vet. App. 477 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1990 to June 1999. This appeal comes to the Board of Veterans’ Appeals (Board) from a September 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In its decision, the RO granted the Veteran’s claim for pain disorder associated with both psychological factors and a chronic general medical condition with a 30 percent evaluation effective January 26, 2012. The Veteran timely appealed. In April 2015, the Veteran submitted an application for a TDIU due to his psychiatric disability. The TDIU claim is considered part and parcel of his claim for an increased rating for a pain disorder. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran testified at a December 2018 Board hearing before the undersigned Veterans Law Judge. The hearing transcript is associated with the claims file. The Board previously remanded the claims in May 2019 and October 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an initial evaluation in excess of 50 percent for pain disorder. The Veteran’s claim for an initial evaluation for pain disorder associated with both psychological factors and a general medical condition was remanded in a May 2019 Board decision. In a June 2020 rating decision, VA granted an increase to 50 percent effective January 26, 2012, the date of the claim. A November 2020 supplemental statement of the case continued the 50 percent evaluation. Rating Criteria 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). For an initial rating claim, consideration will be given to “staged ratings” since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. An evaluation shall be assigned 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 moment of the examination. See 38 C.F.R. § 4.126. Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. Id. It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher from January 26, 2012 onward. 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. Merits of the Claim The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher during the appeal period. His symptoms 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. As an initial matter, the Veteran reported undergoing private mental health treatment during the December 2018 hearing before the Board. In the May 2019 remand of the claims, the Board instructed the RO to make reasonable attempts to obtain these records. Subsequently, the Veteran’s representative submitted a June 2019 statement explaining that the Veteran did not receive any health care outside of the VA system, but did receive treatment at a VA medical facility in New York City. These records, including mental health treatment notes, were obtained and associated with the claims file. The Board also notes that a June 2020 Special Report of Training contains the Veteran’s report that he was approved for Social Security Administration (SSA) disability benefits and would therefore no longer participate in VA’s vocational programs. As discussed above, there are no private treatment records available. Thus, any SSA determination was based upon VA treatment records, which are not new evidence. Neither the Veteran nor his representative has requested that the SSA records be obtained or argued that they contain relevant evidence necessary to decide this claim. The Board declines to remand this claim again for the sole purpose of obtaining SSA records, given the significant likelihood that such records are repetitive of the existing evidence of record. After careful review of the evidence of record, the Board finds that VA treatment records, the September 2013 and October 2019 VA examinations, and the lay statements from the Veteran and his spouse demonstrate that the service-connected pain disorder manifested by symptoms associated with a 50 percent rating, including memory and sleep impairment; anxiety; depression; nightmares; panic attacks; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The pain disorder also manifested symptoms associated with a 70 percent rating, including difficulty in adapting to stressful circumstances. The Veteran also reported symptoms that are not associated with a specific rating, such as shaking, trembling, sweating, decreased appetite and fatigability. His wife reported that he cannot do laundry; he is trigged by the sound of the vacuum cleaner; and he can make a sandwich but cannot cook. The evidence reflects that the Veteran was employed until March 2015, when he reported losing his job due to anger issues. He worked with VA’s vocational programs to enroll in school and pursue employment in the field of medical office administration. He received a certificate in medical office administration and graduated with an Associate in Applied Science degree in May 2019. He began a job search with VA assistance, but then declined to continue after reporting receipt of SSA disability benefits. The medical evidence of record demonstrates that his mood is often anxious and depressed, but his thought process is logical. Medical records also reflect that he did not experience obsessions or delusions, and good judgment and insight were noted throughout his evaluations. He consistently denied suicidal attempts or ideation. During the appeal period, the Veteran divorced and remarried. The Board has carefully reviewed the record and found no evidence of obsessional rituals which interfere with routine activities; intermittently illogical, obscure or irrelevant speech; near-continuous panic or depression affecting the ability to function independently; spatial disorientation; neglect of personal appearance and hygiene; or the inability to establish and maintain effective relationships. The Veteran does experience disturbances of motivation and mood and reports difficulty in establishing and maintaining effective social relationships outside of his family. Thus, his symptoms more nearly approximate a 50 percent disability rating. While the criterion of difficulty in adapting to stressful circumstances, contemplated by a 70 percent rating has been noted, as well as symptoms that are not associated with a specific rating, such as decreased appetite and fatigability, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. The Veteran was able to go to school and obtain a degree which is evidence of an ability to adapt to stressful circumstances. Also, as noted above, his other remaining symptoms were either contemplated by or more consistent with a 50 percent rating based upon occupational and social impairment with reduced reliability and productivity. The evidence does not support a finding that the Veteran’s pain disorder symptoms would have been best approximated by a 70 or 100 percent rating, which contemplates deficiencies in most areas or total impairment. While it may have been difficult for him to engage in social and work relationships at times, his overall disability picture shows that he has the ability to maintain functioning relationships through school, marriage, and family. He also completed a course of education and obtained a degree, including earning an “A” in Healthcare Customer Relations. The evidence does not persuasively show that the pain disorder manifested by social and occupational impairment so severe as to warrant a 70 or 100 percent rating during the appeal period. Thus, the evidence of record reflects functional impairment more nearly contemplated by a 50 percent disability rating. The Veteran is competent to provide evidence about his disability; for example, he is competent to describe symptoms related to his pain disorder, such as experiencing anxiety and suffering from panic attacks. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is also credible to the extent that he believes he is entitled to higher ratings. However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code. While lay persons are competent to provide opinions on some medical issues, determining the severity of a complex condition such as a psychiatric condition falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Competent evidence concerning the nature and extent of the Veteran’s pain disorder was provided by the examiners who interviewed and evaluated him during the relevant period on appeal. The medical findings as provided in the examination reports directly address the criteria under which this disability is evaluated. Thus, the competent lay evidence is outweighed by the competent medical evidence that evaluates the true extent of the disability. The Board has considered whether any additional Diagnostic Codes would yield an increased rating; however, Diagnostic Code 9422 is the most appropriate in light of the pain disorder diagnosis associated with both psychological factors and a general medical condition, as well as the Veteran’s symptoms. The Board also notes that the Veteran was scheduled for VA back, foot, hands, knee, neck, shoulder, headache, and peripheral nerve examinations in October 2019, but declined all examinations other than the mental health evaluation, signaling his agreement that this disability is best evaluated under the General Formula for Mental Disorders. In evaluating this claim, the Board is also cognizant that utilization of the same manifestations under a different diagnosis and diagnostic code is to be avoided. 38 C.F.R. § 4.14. To do so is to impermissibly pyramid the ratings. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The Veteran is already being compensated for symptoms related to his left shoulder disability, which was the basis for the grant of service-connection for the pain disorder. Accordingly, such symptoms pertaining to left shoulder degeneration may not be used to support an increased evaluation for the pain disorder. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list but are examples of the types and severity of symptoms that indicate a certain level of disability. Thus, although the Veteran has endorsed some symptoms indicative of a higher disability rating, the Board believes that based on the overall record, including lay statements, VA treatment records, and the VA examination reports, the frequency, duration, and severity of his pain disorder associated with both psychological factors and a general medical condition are most consistent with a 50 percent disability rating from January 26, 2012. 2. Entitlement to a total disability rating due to individual unemployability. The Veteran contends that his service-connected disabilities prevent him from securing or following any substantially gainful employment. The TDIU claim at hand was inferred as a part of the Veteran’s current appeal of a higher rating for his pain disorder. As such, a Rice TDIU claim has been raised. See Rice, 22 Vet. App. at 454-55 (holding that when a request for TDIU is raised during the administrative appeal of the initial rating assigned for the underlying disability, it is not a separate claim for benefits, but rather is part of the adjudication of the claim for increased compensation for that underlying disability). Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for the following disabilities: (i) pain disorder, rated as 50 percent disabling; (ii) migraines, rated as 50 percent disabling; (iii) degenerative disc disease of the lumbosacral spine, rated as 40 percent disabling; (iv) right lower extremity radiculopathy, rated as 40 percent disabling; (v) left shoulder degeneration, rated as 20 percent disabling; (vi) right knee instability, rated as 20 percent disabling; (vii) neck strain, rated as 10 percent disabling; (viii) left lower extremity radiculopathy, rated as 10 percent disabling; (ix) right knee pain, rated as 10 percent disabling; (x) left first metatarsal fracture, rated as 10 percent disabling; (xi) left hand radiculopathy, rated as 10 percent disabling; (xii) right hand radiculopathy, rated as 10 percent disabling; and (xiii) broken right hand, rated as noncompensable. The Veteran’s combined evaluation is 100 percent throughout the appeal period from January 26, 2012. The United States Court of Appeals for Veterans Claims (Court), however, has held that an award of a 100 percent disability rating does not necessarily render moot a claim of entitlement to a TDIU. See Buie v. Shinseki, 24 Vet. App. 242 (2010); Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level), when considered together with another disability separately rated at 60 percent or more, could warrant special monthly compensation under 38 U.S.C. § 1114 (s). Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU rating even where a 100 percent schedular rating has also been granted. Id. at 293-94. Thus, the key determination is whether the Veteran is unemployable due to one service-connected disability. The Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation based on Unemployability in April 2015. The application indicated that he had last been employed in March 2015. He stated that PTSD prevented him from employment. In a September 2015 statement, he clarified that he intended to seek a TDIU due to his service-connected pain disorder. He also stated that his service-connected headaches and radiculopathy of the hands contribute to his unemployability. A previous employment history dated March 2013 indicated that the Veteran worked as a corrections officer from September 2000 until September 2003, when he left the job due to depression. He then worked for Home Depot for almost two years until he left because of heavy lifting requirements involved in his role as a garden sales associate. He began working for a local Harley Davidson location in May 2006 assisting with sales and parts management. The Veteran underwent a VA mental health evaluation in September 2013. The examiner found that the Veteran had 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 stated that he was close with a co-worker who recently resigned. He described fulfilling supervisory duties, although he was not being compensated for the additional duties. He stated that he frequently missed work due to anxiety and back pain. Crucially, in May 2015, the Veteran worked with VA’s vocational rehabilitation program to develop goals and a plan to become employed again. He decided to enroll in a local community college to pursue a degree and certification to assist with employment as a medical office administrator. In September 2015, a prior employer returned a request for information and indicated that the Veteran had been employed until July 2014, when the business was sold. The employer indicated that the Veteran continued to work for the new business owner. During the September 2018 Board hearing, the Veteran described trouble with his employer at the Harley Davidson store. He was reprimanded for his demeanor and interactions with the public before he was demoted and eventually let go. Significantly, in May 2019, the Veteran graduated with a certificate in medical office administration and an Associate degree in Applied Science. He maintained good grades, earning an “A” in Healthcare Customer Relations and graduating with a 3.4 GPA. VA’s vocational program staff began to assist him with an aggressive job search, until he notified them that he was in receipt of SSA disability benefits and would no longer participate in the program. The Veteran underwent further VA mental health evaluation in October 2019. The examiner noted occupational and social impairment with reduced reliability and productivity. The Veteran reported that he lost his job in 2015 due to irritability, impatience, and reactivity, when the new owners of the Harley dealership fired him. He refused any other examinations other than the mental health evaluation. The examiner noted great functional limitations on the Veteran’s interpersonal relatedness and motivation. His attention, concentration, memory, and problem solving was also impacted from a moderate to great degree, except for his ability to retain instructions and communicate effectively in writing. After careful consideration of the evidence of record, the Board concludes that although the Veteran’s pain disorder results in functional impairment, the evidence fails to show that the disability renders him unable to work. The evidence suggesting the Veteran is unemployable comes primarily from his own statements. While he is competent to provide testimony pertaining to the limitations imposed by his service-connected pain disorder, the competent medical evidence offering specific findings pertinent to the criteria governing the award of a TDIU is the most probative evidence with regard to evaluating the functional impact of the Veteran’s service-connected pain disorder on his employability. As such, while the Board accepts the Veteran’s statements with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and the impact of the service-connected disability on the Veteran’s employability. The Board has also considered the evidence related to the Veteran’s vocational rehabilitation efforts, which demonstrate his ability to successfully earn a degree and initiate an aggressive job hunt in 2019. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran is unemployable due to his service-connected pain disorder. The claim for entitlement to a TDIU rating must be denied. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran has demonstrated that, despite certain functional limitations, he is still capable of performing such acts. After considering the limitations related to the service-connected pain disorder as shown by the lay and medical evidence, the record evidence does not reflect that the disability renders him unemployable. While the evidence of record clearly demonstrates that the Veteran’s service-connected pain disorder is manifested by troubling symptomatology, he is not shown to be unable to perform work that comports with his experience in parts management or his recent training in health care office administration, to include administrative, semi-skilled, unskilled, or other forms of employment. When considering the symptomatology and functional impairment of the service-connected pain disorder alone, without regard to age or nonservice-connected disabilities, the record evidence fails to persuasively demonstrate that the Veteran is unemployable. The Veteran has chosen not to work as evident by his rejection of vocational rehabilitation efforts to place him in a job. Therefore, the Board finds that the service-connected pain disorder has not rendered him unable to secure or follow a substantially gainful occupation. As the preponderance of the evidence is against the claim, the benefit-of -the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jamison, Elizabeth G. 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.