Citation Nr: 21010113 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-28 445A DATE: February 24, 2021 ORDER A 70 percent rating for a psychiatric disability is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The preponderance of the evidence indicates that the Veteran’s psychiatric disability has caused severe deficiencies in most areas of functioning but not total occupational and social impairment. 2. The Board finds that the preponderance of the evidence weighs for finding that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected physiatric disability. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for a psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9435. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1977 to November 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matters were previously before the Board in August 2016 and most recently in January 2020 for further evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. A rating in excess of 30 percent for a psychiatric disability 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. See 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. See 38 C.F.R. § 4.7. The Veteran’s psychiatric disability is rated under the General Rating Formula for Mental Disorders. Under that criteria, 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. 38 C.F.R. § 4.130, DC 9435. 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. Id. 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. Id. 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. See 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. Id. 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.” See Fenderson v. West, 12 Vet. App. 119 (1999). Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration. Factual Background & Analysis The Veteran contends that his service-connected psychiatric disability warrants a rating in excess of 30 percent. The Veteran underwent a private psychological evaluation in October 2015 conducted by Dr. Heather Henderson-Galligan (Dr. HHG), Ph.D, HSPP. The evaluator indicated that the Veteran’s service-connected psychiatric disability symptoms have caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood dating back to June 2012. Regarding occupational impairment caused by the Veteran’s psychiatric symptoms, the evaluator stated that the Veteran would miss 3 or more days of work per month due to mental problems, leave work early 3 or more days per month; would not be able to focus for at least 7 hours a day more than three days per month and would respond inappropriately to normal pressures and constructive criticisms more than once per month in an angry manner but would not actually become violent. In terms of social impairment, the evaluation documents that the Veteran has been married and divorced once, has no children, lives alone, keeps his struggles to himself, is socially isolated and withdrawn and reports having over 57 jobs over his lifetime with the longest being three years. The accompanying Disability Benefits Questionnaire (DBQ) form indicated that the Veteran’s relevant symptoms for VA rating purposes are: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, flattened affect, 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, persistent delusions or hallucinations, intermittent inability to perform activities of daily living, including maintenance of minimum personal hygiene. Further, an April 2015 statement from the Veteran’s friend K.S. endorses that his psychiatric symptoms include violent and frustrated behavior and using drugs and alcohol to cope with his mental health issues. He further stated that the Veteran has been arrested several times for DUIs, fighting and public intoxication. Additional symptoms of depression, suicidal behavior and severe mood swings were noted. VAMC mental health treatment records reflect symptoms of hypervigilance, racing thoughts that interfere with his concentration in conversation, poor sleep, hostile behavior, suicidal ideations, low motivation, anxiety, psychosis and feelings that he is being watched. November 2018 Life Spring Mental Health Center records note that the Veteran was noncompliant with attendance. He has significant levels of family problems, such as frequent arguments, problems with social functioning, problems with relationships that currently interfere with functioning in other domains of life, trouble sleeping and decision-making. A July 2019 VA psychological examination report notes that the Veteran reports hallucinations and thinks he hears people talking, has many panic attacks and a history of violent behaviors with poor impulse controls. The Veteran has had two past suicide attempts. September 2019 to November 2019 Life Spring Mental Health Center records document manic moods including days without sleep and excessive energy, depression with tears and crying and social withdrawal from others, he does not do well in crowds and his difficulty with concentration. The examiner noted moderate levels of difficulty with social functioning, independent living, self-management and significant problems with decision-making. The Veteran was noted to have “outrageous tirades” and has auditory hallucinations and nightmares from trauma. December 2019 records from Clark Memorial Hospital documents symptoms of alcohol withdrawal and feelings that he “wants to die because hurts all the time.” The Veteran hears voices and different noises all the time. He stated that he threw eggs at a neighbor’s house. On March 2020 VA psychological examination the Veteran was diagnosed with unspecified depressive disorder as a continuation of service-connected bipolar disorder. The examiner noted that the Veteran’s relapse into alcohol use and withdrawal may be contributing to some mood and sleep issues although his unspecified depressive disorder accounts for most of his symptoms and impairment. The Veteran stated that an old girlfriend of his stops by 1 to 2 times per week and they occasionally attend church. He enjoys going to churches and observing the architecture. He reported a positive relationship with 2 friends, and he talks to them 2 to 3 times per week. The Veteran reported not working for the past 15 to 16 years. Symptoms of depressed mood, anxiety and chronic sleep impairment were indicated. He further stated that he had suicidal ideation 3 months prior when his car and money were stolen and has considered drinking himself to death. The Veteran reported feeling optimistic that he will begin participating in more activities when he is in an assisted living facility. With respect to occupational impairment, the examiner indicated that the Veteran’s psychiatric symptoms cause mild impairment in the ability to sustain concentration to task persistence and pace and to work in groups, and moderate impairment in work-place flexibility. The Board finds that the above provides ample evidence that the Veteran’s service-connected psychiatric disability has caused deficiencies in most areas of functioning. Specifically, the Veteran’s symptoms have caused significant deficiencies and impairment to his mood (irritability, anger, depression, chronic sleep impairment, anxiety, mood swings/outbursts), family relationships and social functioning, (mostly isolates himself, reportedly had “significant degrees of family problems), judgment and thinking (suicidal ideation, racing thoughts, multiple arrests, threw eggs and his neighbors home), and work (has not worked in the past 15 to 16 years, cannot adapt to changes in a work-like setting or maintain effective relationships). The Board has given considerable probative weight to the October 2015 private psychological evaluation which documents clinically significant psychiatric symptoms that result in occupational and social impairment with deficiencies in most areas from at least June 2012 onwards. Consequently, and giving the Veteran the benefit of the doubt, the criteria for a higher 70 percent rating for a service-connected psychiatric disability have been met. As the Board is granting a higher 70 percent rating what remains for consideration is whether a still higher 100 percent rating is warranted at any time during the period on appeal. The Board concedes that the Veteran’s psychiatric disability causes severe and serious impairment. However, the evidence does not demonstrate that his overall disability picture is characterized by total social and occupational impairment warranting a higher 100 percent rating. As discussed, the Veteran has maintained some social interaction with his old girlfriend and a few friends and remains actively involved with his church. Moreover, the VA psychological examination reports of record indicate that the Veteran maintains at least a moderate degree of social and occupational functioning and describe his presentation and behavior in mostly unremarkable terms. Rather, behavioral observations by VA examiners throughout the appeal period never characterized the Veteran as having neglected his physical appearance or as appearing disoriented or cognitively impaired. Additionally, while the Veteran’s psychiatric disability has intermittently been characterized by symptoms that approximate those consistent with the criteria for a higher 100 percent rating, such as grossly inappropriate behavior, persistent danger of hurting self or others or intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), these symptoms have not occurred with such frequency, duration or severity as to render the Veteran totally occupationally and socially impaired. 38 C.F.R. § 4.126 (a). Therefore, while the Veteran’s disability is admittedly serious, the preponderance of the evidence does not weigh for finding that his psychiatric symptoms approximate the frequency, duration or severity contemplated by the criteria warranting a 100 percent rating (i.e., a disability that is not only grossly but also persistently disabling). To the contrary, the Veteran appears to have thankfully retained at least some degree of normal functioning during his life. Consequently, the Board finds the preponderance of the evidence is against finding the Veteran’s psychiatric disability causes symptoms and deficiencies approximating the total occupational and social impairment contemplated by a higher 100 percent rating and, to that extent, the appeal must be denied. 2. Entitlement to a TDIU Legal Criteria TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Factual Background & Analysis The issue of entitlement to a TDIU was raised as part and parcel of the Veteran’s pending increased rating claim for a psychiatric disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Pursuant to this decision herein, the Veteran has been assigned a 70 percent rating for his service-connected psychiatric disability. Accordingly, he has met the schedular criteria for a TDIU throughout the relevant period on appeal. 38 C.F.R. § 4.16 (a). (Continued on the next page)   The Veteran’s December 2020 TDIU application documents that he last worked full-time in May 2005 in telemarketing. The Board has listed and discussed symptoms of occupational impairment caused by the Veteran’s psychiatric disability as part of the increased rating claim above. Significantly, Dr. HHG found after a complete psychological evaluation that the Veteran cannot “sustain the stress for competitive work environment or be expect to engage in gainful activity due to his bipolar disorder.” She ultimately concluded that the Veteran’s service-connected psychiatric disability symptoms prevent him from maintaining substantially gainful employment. After considering the above, the Board finds the preponderance of the evidence is weighted towards a finding that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected psychiatric disability. The Veteran credibly communicated that he cannot obtain or maintain full-time employment because of the impairment caused by his psychiatric symptoms. This contention is bolstered by the medical evidence of record which documents severe psychiatric symptoms throughout the appeal period. In resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. 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.