Citation Nr: 21007983 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 16-20 502 DATE: February 11, 2021 ORDER Entitlement to an initial disability rating of 50 percent, but not higher, for a psychiatric condition is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s psychiatric condition has manifested as occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 50 percent, but not higher, for a psychiatric condition have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9422, General Rating Formula for Mental Disorders. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to June 1992. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of September 2014 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in January 2015. The RO issued a statement of the case (SOC) and the Veteran’s timely appeal to the Board followed in March 2016. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. The Board subsequently denied the Veteran’s increased-rating claim in a decision of November 2018. See November 2018 Board Decision at 8-12. After a motion to vacate this decision was denied in February 2019, the Veteran subsequently appealed to the Court of Appeals for Veterans Claims (CAVC). The CAVC vacated and remanded the Board’s decision in April 2020. See April 2020 CAVC Decision at 2-6 (providing joint motion for remand); see also id. at 8 (providing order remanding “for action consistent with the terms of the joint motion”). The CAVC also directed the Board to address the issue of entitlement to a TDIU, finding that the Veteran had reasonably raised that issue as part of his claim. See id. at 4-5; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board subsequently remanded the Veteran’s case to the RO for additional development, including an updated VA examination. See October 2020 Board Decision at 9-10. The RO issued a supplemental statement of the case (SSOC) in November 2020. After reviewing the evidence of record, the Board finds that the RO has substantially complied with its remand directives as to the increased-rating issue and will therefore proceed to adjudicate that issue on the merits. However, the issue of entitlement to a TDIU requires an additional remand because the evidence of record is inadequate to fully support the Board’s adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). Entitlement to an initial disability rating in excess of 30 percent for a psychiatric condition. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal is from the initial rating assigned with the grant for service connection, “staged” ratings (for periods when varying degrees of disability are shown) may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s psychiatric condition is evaluated as 30 percent disabling from June 2010 under Diagnostic Code (DC) 9422. See December 2020 Rating Codesheet at 1. Under the General Rating Formula for Mental Disorders (General Rating Formula), the applicable rating criteria are as follows: 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 function satisfactorily, with routine behavior, self-care, and conversation, due to such symptoms 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). See 38 C.F.R. § 4.130, General Rating Formula. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent 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: 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A maximum 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name. The Board notes that the criteria listed in the General Rating Formula are neither individually dispositive nor collectively exhaustive. “[Any] suggestion that the Board [is] required… to find the presence of all, most, or even some, of the enumerated symptoms is unsupported by a reading of the plain language of the regulation.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Instead, the Board must “assign an evaluation based on all the evidence of record that bears on occupational and social impairment[.]” 38 C.F.R. § 4.126. The Board further notes that “[different] examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked… It is the responsibility of the [Board] to interpret reports of examination in the light of the whole recorded history[.]” 38 C.F.R. § 4.2. As discussed above, the Board previously denied this claim in November 2018. The CAVC, in vacating and remanding this decision, found that the Board had not adequately considered a December 2017 Disability Benefits Questionnaire (DBQ) provided by the Veteran. See April 2020 CAVC Decision at 4. This DBQ, as well as an accompanying private medical opinion and additional medical records, were collected by the Veteran’s counsel in a submission of January 2020. The December 2017 private examiner opined that the Veteran’s psychiatric condition manifested as occupational and social impairment with deficiencies in most areas. See January 2020 Appellate Brief at 92. However, several of the private examiner’s findings are not corroborated by, or in places explicitly contradicted by, the findings of other examiners or by the Veteran’s own statements. See January 2020 Appellate Brief at 93 (private examiner’s finding that the Veteran worked twenty-five short-term labor jobs following his military service and that he was unable to sustain employment due to his psychiatric condition); cf. January 2020 Medical Treatment Records at 36 (providing Veteran’s report, in an application for Social Security benefits, of working only five jobs between June 1993 and October 2007); cf. also August 2013 VA Examination Report at 4 (noting that the Veteran left previous job in 2008 due to workplace injury); cf. also January 2018 VA Examination Report at 5 (noting that the Veteran at that time worked “25 or 30 hours per week” but that “more hours than this would be difficult secondary to knee, back[,] and arthritis problems”); cf. also December 2020 VA Examination Report at 3 (noting that the Veteran had been working for 3 years as a deliveryman, but had left this job in July 2020 due to a shoulder injury and to threats received from another employee). The December 2017 private examiner also found a wide range of symptoms drawn from the 50 and 70 percent rating criteria discussed above. However, these findings are consistently contradicted by those of no fewer than four separate VA examiners. See December 2017 Appellate Brief at 94; cf. August 2013 VA Examination Report at 7; cf. also January 2018 VA Examination Report at 5-6; cf. also November 2020 VA Examination Report at 6; cf. also December 2020 VA Examination Report at 5. The Board notes that the November 2020 VA examiner found one symptom drawn from the higher rating criteria and that the December 2020 VA examiner found several others. However, as discussed previously, the General Rating Formula’s criteria are neither individually dispositive nor collectively exhaustive. See Mauerhan, 16 Vet. App. at 442. Despite finding these individual symptoms, the November and December 2020 VA examiners still concurred with their August 2013 and January 2018 predecessors that the total functional impairment of the Veteran’s psychiatric condition did not exceed that approximated by the 30 percent rating criteria. See August 2013 VA Examination Report at 2; see also January 2018 VA Examination Report at 3; see also November 2020 VA Examination Report at 3; see also id. at 8 (noting that “the Veteran’s mental health symptoms negatively impact his ability to be around and interact effectively with others to a mild degree”); see also December 2020 VA Examination Report at 2. In his accompanying opinion, the December 2017 private examiner stated that “[the Veteran] cannot sustain the demands and stress from a competitive work environment or be expected to engage or adequately function in gainful work activity… due to his [psychiatric condition].” See January 2020 Appellate Brief at 98. However, this is directly contradicted by the Veteran’s report that he has in fact been working for significant portions of the rating period on appeal, both before and after the December 2017 private examiner’s opinion. See December 2020 VA Examination Report at 3 (providing that the Veteran had been employed as a deliveryman for 3 years); see also January 2020 Appellate Brief at 57 (providing, from Oregon state mental health treatment notes, that as of February 2016 he “work[ed] 72 hours a week in a private adult foster home”); see also August 2013 VA Examination Report at 4 (providing that the Veteran was at that time “currently employed part-time… [and] currently interviewing for more lucrative employment”). The credibility and probative weight of a medical opinion must be based on accurate facts. “An opinion based on an inaccurate factual premise has no probative value.” See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because the December 2017 private examiner’s opinion appears partially based on inaccurate facts concerning the Veteran’s employment history, and because it is not consistent with the other evidence of record, the Board assigns it less probative weight than the combined opinions of the four VA examiners. The Board also notes that the Veteran’s sister wrote a November 2016 letter in support of his claim. See January 2020 Appellate Brief at 81. The Board finds that the Veteran’s sister is competent to describe symptoms capable of lay observation, such as alterations in mood and behavior. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). “Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board[.]” Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The severity of symptomatology the Veteran’s sister describes is partially contradicted by reports from the Veteran himself. See January 2020 Appellate Brief at 81 (stating that the Veteran “cannot function properly in public”); cf. August 2013 VA Examination Report at 4 (providing that the Veteran “regularly visits 3-4 friends” and “denies significant effects of his psychiatric symptoms on his social relationships”); cf. also January 2018 VA Examination Report at 5 (noting that the Veteran provides live musical performances in bars with a friend). However, the Board notes that the length of time the Veteran’s sister has had in which to observe the Veteran’s behavior is greater than that available to any of the medical examiners of record. The Board therefore assigns this letter moderate probative weight even if it is not wholly consistent with the other evidence of record. The Board therefore concludes that while the balance of the evidence of record is against a finding that the 70 percent disability rating criteria have been met, it is at least as likely as not that the Veteran’s psychiatric condition manifests to a degree higher than the 30 percent rating reflected in the VA examiners’ opinions. 38 U.S.C. § 5107. The assignment of a 50 percent disability rating for the Veteran’s psychiatric condition is therefore warranted. 38 C.F.R. § 4.130, General Rating Formula. Because the Veteran’s symptoms are explicitly contemplated under the schedular criteria, referral for an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008). REASONS FOR REMAND Entitlement to a TDIU. Generally, VA will grant a TDIU when the evidence shows that the Veteran is precluded by reason of his service-connected disabilities from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). Marginal employment “generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established… as the poverty threshold for one person.” Id. However, the Veteran’s occupational history is not fully apparent from the evidence of record. The Veteran’s previous application for a TDIU, as well as records obtained from the Social Security Administration (SSA), do not provide employment history beyond 2008. See August 2010 VA Form 21-8940; see also January 2020 Medical Treatment Records at 34-36. The Board particularly notes that more recent VA examinations suggest that the Veteran has in fact been employed for substantial periods of time during the rating period on appeal. However, these examinations do not clarify whether such employment has been substantially gainful or was merely marginal in nature. See, e.g., December 2020 VA Examination Report at 3 (suggesting that the Veteran was “last employed [in July 2020]… as [a] delivery man, for 3 [years]”). This matter is therefore REMANDED for the following action: 1. Provide the Veteran with a VA Form 21-8940 for completion; and obtain any subsequent or outstanding SSA records identified. 2. Readjudicate the appeal. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.