Citation Nr: 21009728 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 15-06 411 DATE: February 23, 2021 ORDER Entitlement to an evaluation in excess of 50 percent for an anxiety disorder on/after February 27, 2017 is denied. Entitlement to a total disability based on individual unemployability prior to September 24, 2020 is denied. FINDINGS OF FACT 1. The preponderance of the evidence supports a finding that on/after February 27, 2017 the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 2. The preponderance of the evidence supports a finding that prior to September 24, 2020 the Veteran’s service connected disabilities alone did not render him unable to obtain or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for an anxiety disorder on/after February 27, 2017 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 9403. 2. The criteria for a total disability based on individual unemployability prior to September 24, 2020 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341(a), 4.1, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from March 1971 to December 1973. In February 2018, the Veteran testified at a hearing before the undersigned. A transcript of that hearing is of record. In June 2020, the Board remanded these issues for additional development. The Board finds that there was substantial compliance with the June 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). While in Remand status a TDIU was granted as of the most September 24, 2020. The earlier period remains on appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. § Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. (2020). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Mental Disorders 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). The Veteran’s anxiety falls under Diagnostic Code 9403 Under the General Formula for Mental Disorders. Under Diagnostic Code 9403, 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. Id. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Diagnostic Code 9403. TDIU The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, and disabilities resulting from a common etiology or a single accident or disabilities affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In reaching such a determination, 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). Consideration may not be given to the impairment caused by nonservice connected disabilities. See 38 C.F.R. §§ 3.34, 4.16, 4.19. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). 1. Entitlement to an evaluation in excess of 50 percent for an anxiety disorder on/after February 27, 2017. The Veteran contends that he is entitled to an evaluation in excess of 50 percent for an anxiety disorder after February 27, 2017. The Board concludes that on/after February 27, 2017, the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent. The Veteran’s 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. In a September 2020 VA mental disorder examination, the Veteran presented well groomed, alert, and cooperative with normal speech patterns. His thought process was noted as lineal, logical, and goal directed. The Veteran reported that he experiences the following symptoms: nightmares; night sweats; night terrors; headaches; hypervigilance; poor concentration; irritability; dizziness; and an exaggerated startle response. The examiner diagnosed the Veteran with an unspecified anxiety disorder with a specific animal phobia. The following symptoms were noted during the Veteran’s examination: depressed mood; anxiety; suspiciousness; weekly panic attacks; chronic sleep impairment; impairment of short and long term memory; flattened affect; difficulty understanding complex commands; disturbances of mood or motivation; and difficulty adapting to stressful circumstances. The examiner noted that There is comorbidity between the Veteran’s psychiatric disorders. He explained that its presence will likely worsen the prognosis of all the diseases that the Veteran experiences. The examiner also noted that the Veteran’s psychiatric disorder will lead to an increasing number and severity of complications and 3 make the treatment of all of the symptoms more difficult and, possibly, less effective. Concerning social and occupational limitations, the examiner diagnosed 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 examiner noted that there is significant overlap between the symptoms of the Veteran’s psychiatric conditions which does not allow for accurate or precise differentiation of how each disorder impairs his occupational and/or social functioning. However, collectively, the clinical research literature has consistently indicated that these disorders can affect his ability to perform different forms of work. The examiner explained that when the Veteran experiences attacks related to panic, trembling, fear, exposure to animals, or other effects of anxiety, he will have trouble performing tasks which often requires attention to detail. The examiner noted that employment requiring manual labor will be difficult for the Veteran to complete when he experiences anxiety or when he has an anxiety attack. The examiner also noted that the Veteran likely experiences tremors or difficulty of concentration which makes it very difficult for him to engage in physical or sedentary employment. The Board finds that on/after February 27, 2017, the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Further, while the September 2020 VA mental disorder examination records show that the Veteran reported: perceived occupational impairment involving nightmares; night sweats; night terrors; headaches; hypervigilance; poor concentration; irritability; dizziness; and an exaggerated startle response, the examiner diagnosed 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 examiner explained that during the Veteran’s periods of anxiety he will have trouble performing task which require attention to detail; however, there is no indication that the frequency, duration, and severity of the Veteran’s anxiety attacks has resulted in occupational and social impairment with deficiencies in most areas. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service-connected anxiety disorder has increased, and an increased evaluation is warranted. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the severity of his anxiety disorders as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran reports that the severity of his anxiety has increased, the competent and credible evidence of record reveals that the Veteran does not have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The Board finds that based on the evidence of the claims file, the 50 percent evaluation currently assigned better approximates the trajectory of the Veteran’s current anxiety symptoms. As the Board reviewed the Veteran’s records and determined that they do not support an increased disability rating in excess of 50 percent for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102 (2020). 2. Entitlement to a total disability based on individual unemployability prior to September 24, 2020. The Veteran essentially contends that he is entitled to a total disability based on individual unemployability prior to September 24, 2020. The Veteran was also assigned periods of convalescence prior to September 24, 2020. The entire period is on appeal, except for the periods where he was in receipt of a temporary total rating for a period of convalescence following surgery. The Veteran submitted a February 2013 compensation claim based on individual unemployability. At the time, the Veteran reported that he was employed as an owner and mechanic of an auto repair shop from November 1983 to April 2008. The Veteran also reported that his employment ended when he closed his auto repair shop. Prior to September 24, 2020, the Veteran is service connected for the following: residuals of a left knee replacement at 60 percent; anxiety disorder at 50 percent; right shoulder arthroplasty at 30 percent; and the residuals of a right shoulder scar at 0 percent. As the Veteran does have a single service-connected disability ratable at 60 percent or more, or there are more than two or more disabilities with one at least ratable at 40 percent or more, and a sufficient additional disability to bring the combined rating to 70 percent or more, the Veteran does currently meet the schedular requirements for consideration of individual unemployability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2020). In a November 2014 VA mental disorders examination, the Veteran reported that he was last employed in 2008 and has not sought employment since. The examiner diagnosed the Veteran with a specific phobia of animals. Concerning occupational and functional limitations, the examiner noted that the Veteran’s diagnosed mental disorder symptoms are not severe enough to interfere with occupational and social functioning. The examiner also noted that the Veteran does not require continuous medication, nor is he prescribed psychotropic medication or receiving mental health services. The examiner diagnosed that the Veteran’s occupational impairment is due to medical conditions. In a December 2017 VA shoulder examination, the examiner diagnosed the Veteran with a rotator cuff tear of the right shoulder. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right shoulder impacts his ability to perform some occupational task and can be problematic at times. In a July 2020 VA shoulder examination, the examiner diagnosed the Veteran with right shoulder joint replacement. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right shoulder impacts his ability to perform some occupational task due to loss of shoulder elevation and weakness. In a July 2020 VA knee examination, the examiner diagnosed the Veteran with a history of traumatic arthritis of the left knee. Concerning functional and occupational limitation, the examiner noted that the Veteran’s left knee impacts his ability to perform physically demanding activities or those requiring prolonged weight bearing, knee flexion, or ambulation. VA outpatient treatment records during the appeal period also reveal that the Veteran underwent regular occupational therapy for his right shoulder disorder during the period on appeal. Functional progress and improved motion of the right shoulder was noted over time. The Board notes that the Veteran’s electronic claims file also includes findings from the Social Security Administration (SSA) and that SSA considered him disabled due to a back disorder, but not disabled for any of the disorders that he is currently service connected for. The above evidence reflects that the Veteran’s service connected disabilities alone do not render the Veteran unable to obtain and maintain substantially gainful employment prior to September 24, 2020. Importantly, the Board emphasizes that it is not bound by SSA disability findings when considering VA benefits, including entitlement to a TDIU. Although the Veteran claims that his service connected disabilities have prevented his employment prior to September 24, 2020, VA examination reports have repeatedly indicated that while the Veteran’s service connected disabilities render him unable to perform certain types of labor; nonetheless, the evidence of record does not show that prior to September 24, 2020 he is rendered unable to physically or mentally secure or follow substantially gainful employment as a result of his service connected disabilities. As indicated in the record, the Veteran was the owner of a business where he worked as a mechanic. The record also indicates that the Veteran closed his business in 2008, but there is no indication of TDIU related to his service connected disabilities at the time. Overall, the record indicates that the Veteran’s experiences are such that the impairment caused by his service connected disabilities would not prevent him from securing and following substantially gainful employment prior to September 24, 2020. As of that date, the combined orthopedic impairment with 2 joint replacements, and the psychological impairment, as likely as not rendered him unemployable. The Board also reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his service connected disorders warrants TDIU prior to September 24, 2020. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to TDIU as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Moreover, he has not provided employment information which would support his contentions. After a full review of the record, the Board finds that the evidence is against the Veteran’s claim for TDIU prior to September 24, 2020. As discussed above, the pertinent evidence of record does not demonstrate that the Veteran’s service connected disabilities, alone, are of sufficient severity to render him unable to secure or follow substantially gainful employment at any time during this appeal period. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris, 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.