Citation Nr: 21010013 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 17-49 855 DATE: February 23, 2021 ORDER Effective October 1, 2014, entitlement to a 70 percent rating for the service-connected psychiatric disability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The preponderance of the probative evidence weighs in favor of finding that, throughout the appeal period, the Veteran’s mental health condition has manifested in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (contemplated by a 70 percent rating). CONCLUSION OF LAW The criteria for entitlement to an initial increased rating of 70 percent, but no higher, have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9413, General Rating Formula for Mental Disorders. REASONS AND BASES FOR FINDING AND CONCLUSION In an April 2019 Decision, the Board denied entitlement to an increased rating above 30 percent for the mental health condition herein. In an April 2020 Joint Motion for Remand (JMR), the U.S. Court of Appeals for Veterans Claims (Court) vacated the April 2019 Board Decision and remanded the issue of entitlement to an increased rating above 30 percent for the mental health condition herein. In a November 2020 Decision, the Board remanded entitlement to an increased rating above 30 percent for the mental health condition herein. In a December 2020 Rating Decision, the agency of original jurisdiction (AOJ) granted an increased rating from 30 percent to 50 percent, effective November 15, 2020, for the mental health condition herein. However, because higher ratings are still available, the increased rating appeal remains properly before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for entitlement to a TDIU is part-and-parcel of an increased rating claim when unemployability is expressly raised by a Veteran or reasonably raised by the record during the increased rating appeal. The Board finds that the record raises that question of marginal employment due to service-connected disability. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. The Veteran generally contends that, throughout the appeal period, he has met the criteria for a higher rating for his mental health disability. In pertinent part, the Veteran’s mental health disability has been rated under DC 9413 at 30 percent from October 1, 2014, through November 14, 2020, and at 50 percent since November 15, 2020. See December 2020 Codesheet; 38 C.F.R. § 4.130, DC 9413, General Rating Formula for Mental Disorders. Under the General Formula for Mental Disorders, a 0 percent rating is warranted when the evidence shows that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. 38 C.F.R. § 4.130, DC 9413, General Rating Formula for Mental Disorders. A 10 percent rating is warranted when the evidence shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Id. A 30 percent rating is warranted when the evidence shows 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when the evidence shows 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. Id. A 70 percent rating is warranted when the evidence shows 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent (maximum schedular) rating is warranted when the evidence shows 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. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Further, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). The Court has also held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014) (holding that a medical opinion can diagnose the presence of the disability and identify an earlier onset date based on preexisting symptoms). Initially, the Board notes that this claim was certified to the Board after August 4, 2014. See July 2018 VA Form 8. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, 4.130 (2017). Accordingly, the Board’s adjudication of this claim cannot include any discussion of Global Assessment of Functioning (GAF) scores found in the record. Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). 1. Entitlement to an initial increased ratings for unspecified trauma and stressor related disorder An August 14, 2014, service treatment record (STR) documented the Veteran’s report prior suicidal ideation without intent. An April 2015 VA psychiatric examination revealed: recurrent, involuntary, and intrusive distressing memories of trauma; intense or prolonged psychological distress at exposure to trauma cues; persistent avoidance of stimuli associated with the trauma; avoidance of or efforts to avoid distressing memories, thoughts, or feelings about the trauma; avoidance of or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings about the trauma; hypervigilance; sleep disturbance; and anxiety. The Veteran denied a history of suicidal attempts and active suicidal and homicidal ideation. The examiner found that: speech was within normal limits and the Veteran maintained sufficient eye contact; psychomotor activity was normal; the Veteran appeared euthymic and affect was within normal limits; thought process was linear, logical, and goal directed; there were no indications of derailment or bizarre behavior; thought content showed no suicidal or homicidal thoughts; there was no evidence of auditory or visual hallucinations, delusions, paranoia, obsessions, or compulsions; insight and judgment was adequate; sufficient impulse control was reported and demonstrated; cognition was alert and oriented to person, place, time, and purpose; and recent and remote memories were appropriate. The examiner concluded that the Veteran’s symptoms manifested in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication; however, the examiner also indicated that the symptom disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. In a September 2015 Notice of Disagreement (NOD), the Veteran contended that a higher rating was warranted due to symptoms of: social impairment; near continuous panic attacks; impulse control; and difficulty in adapting to stressful circumstances. In a September 2015 letter, private provider Dr. JVE wrote that: the Veteran and his spouse had been attending marital counseling since December 2012; the Veteran had been charged with domestic violence; alcohol usage was problematic in the marriage; the Veteran had generalized irritability and sleep disturbance; the Veteran has reduced his alcohol consumption dramatically; and the Veteran and his spouse have shown significant improvement. An October 2015 Central Texas VAMC record documented symptoms of: worsening emotional lability and agitation over the past month or so; difficulty controlling anger; anxiety; excessive use of alcohol, including a recent blackout from alcohol during which he allegedly assaulted his spouse, although the Veteran had no memory of it; low mood; reduced energy; feeling like a failure; nervousness; restlessness; and persistent worry for several days over the past two weeks. A September 2016 Central Texas VAMC record documented that the Veteran: was being treated for alcohol abuse; had mood swings; had depressed mood; had trauma; had bad dreams; had disturbing nightmares and memories; had irritability and anger; had poor sleep; and stayed away from others and tried to keep from being bothered. An October 2016 Central Texas VAMC record documented that: the Veteran reported about two episodes of anger and irritability per week which are not triggered, entail verbal aggression, and last 45 to 60 minutes; apart from those episodes, his mood is good and he enjoys reading, fishing, and being outdoors; he denies feeling anxious; he sleeps about four hours with a CPAP, but has nightmares about half of the nights; he has good energy and appetite without difficulty concentrating; he has been sober for one year; and he just began a coping skills group. A November 2016 Central Texas VAMC record documented that: the Veteran’s mental health medication was increased; he felt very “mellow” and had not had any episodes of irritability and anger; his mood, energy, concentration, and appetite have been good; he is sleeping about four hours per night and nightmares have reduced to twice per week; he remains sober; and he finished a coping skills group, which he found helpful. In March 2017 vocational rehabilitation records, the Veteran reported that his recent employment has only been part-time jobs: (a) part-time grocery store stalker from January 2014 to February 2014 at HEB; (b) part-time cook from February 2014 to May 2014 at PH; and (c) part-time cook since May 2014 at MWR. The Veteran described how he was seeking vocational rehabilitation services to give him a chance to go back to school and work on a degree; however, VA determined that the Veteran was not entitled to such services because he did not have an employment handicap because the Veteran stated that his service-connected disabilities were not affecting his ability to maintain his current employment as a cook. An April 2017 psychiatric evaluation by private provider Dr. RJDR revealed that the Veteran: had been married for 14 years, with a better relationship after marriage counseling; had two children and excellent relationships with them; had no close friends and reported that he did not trust anybody. This document details significant manifestations of the disability, but not reflect total occupational and social impairment. In an August 2020 Brief, the Veteran contended that an increased rating of 70 percent is warranted due to suicidal ideation throughout the appeal period. June 2020 and July 2020 Central Texas VAMC records documented that the Veteran did not have suicidal ideation, plan, or intent in the past month; however, he did have recent suicidal behavior (less than three months prior) of preparing to end his life. In a November 2020 examination, the examiner concluded that the symptoms manifested in 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. In a January 2021 Brief, the Veteran reiterated the contention that an increased rating of 70 percent is warranted due to suicidal ideation throughout the appeal period. Based on this evidence, including the frequency, severity, and duration of the Veteran’s impairment, the Board finds that, throughout the appeal period, the Veteran’s mental health disability has manifested in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood (contemplated by a 70 percent rating). 38 C.F.R. § 4.130, DC 9413, General Rating Formula for Mental Disorders; Fenderson, supra; Hart, supra. Specifically, the Board finds the Veteran’s statements regarding lay-observable symptoms (including, but not limited to, ongoing suicidal thoughts and behaviors throughout the appeal period) to be probative because he is competent to describe such symptoms and his statements have remained longitudinally consistent throughout the record. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In addition to suicidal ideation, the Veteran has other symptoms contemplated by a 70 percent rating, including, but not limited to occupational impairment (history of changing jobs or working only part-time jobs due to mental health symptoms) and social impairment (infrequent social interaction outside of immediate family and some interpersonal struggles with his spouse) with deficiencies in most areas (work, family relations, judgment, thinking, and mood). As such, the Board finds that a 70 percent rating is warranted throughout the entire appeal period. However, the Board finds that the criteria for a higher rating of 100 percent are not met because the evidence does not show that the Veteran’s mental health disability causes total occupational or social impairment. Specifically, pursuant to the Veteran’s resume (submitted in connection with his March 2017 efforts to obtain vocational rehabilitation benefits), the Veteran’s employment history and experience lists several jobs throughout the appeal period involving leadership, training, and supervisory roles, which more likely than not require successful, interpersonal interactions with coworkers. Further, although the Veteran and his spouse had some interpersonal struggles, the Veteran reported that their relationship improved after marriage counseling and that he has an excellent relationship with his children. Lastly, neither the private nor VA records in the claims file identified total occupational or social impairment, or symptoms productive of such impairment. Thus, the Board finds that a 70 percent rating, but no higher, is warranted throughout the appeal period. REASONS FOR REMAND 1. Entitlement to a TDIU As noted above, the Board finds that the issue of TDIU has been raised in the record as part and parcel of the increased rating claim in appellate status. In relevant part, the record raises the question of whether the service-connected psychiatric disability has resulted in the Veteran’s part-time employment and whether this part-time employment represents marginal employment. The matters are REMANDED for the following action: 1. Notify the Veteran of the information and evidence that is required to substantiate a claim for entitlement to a TDIU and request that he complete and submit a formal application for a TDIU (VA Form 21-8940). 2. After conducting any appropriate evidentiary development in support of the claim, adjudicate the appeal. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.