Citation Nr: 21011195 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 18-20 892 DATE: March 1, 2021 ORDER Entitlement to an increased rating higher than 70 percent for panic disorder with major depressive disorder and bipolar disorder (panic disorder) is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s panic disorder symptomatology does not more nearly approximate total occupational and social impairment at any time during the period on appeal. 2. The evidence is at least evenly balanced as to whether the Veteran’s service connected panic disorder precludes him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an increased rating for panic disorder, currently rated 70 percent, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, diagnostic code (DC) 9412. 2. With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to August 1983. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from September 2016 and March 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) which, respectively, continued a 70 percent rating for panic disorder, and, among one other thing, denied a TDIU. The Veteran filed his notices of disagreement in March 2017 and March 2019, was issued statements of the case in February 2018 and April 2020, and in April 2018 and June 2020 perfected his appeals to the Board. On February 11, 2021 the Veteran appeared at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has not yet been associated with the claims file, but is not necessary for a decision on the claim. Ratings Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Panic disorder The Veteran’s panic disorder is currently rated 70 percent disabling under DC 9412. Panic disorder is rated under the General Rating Formula for Mental Disorders. Under this formula, a 70 percent evaluation is warranted where there is 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); and inability to establish and maintain effective relationships. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Symptoms listed in the VA’s general rating formula for mental disorders serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held “that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration.” Id. at 117. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. When evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126 (a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, not solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126 (b). An August 2016 psychiatric assessment note reflects that the Veteran denied panic attacks, but reported feeling depressed, anhedonic with poor energy on some days, and becoming tearful without crying spells. He reported difficulty falling asleep despite taking medications. A September 2016 disability benefits questionnaire (DBQ) reflected diagnoses of bipolar disorder and generalized anxiety with panic attacks, but the examining psychologist noted that it was not possible to differentiate what symptoms were attributable to each diagnosis. The DBQ indicated that the Veteran’s psychiatric disabilities resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood. The Veteran reported being married to his wife since 2002, stated that his interest to participate in former hobbies has decreased, and that he does not socialize with anyone. He reported working at the Miami VA in housekeeping. The DBQ reflected symptoms of depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a work-like setting, impaired impulse control, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The Veteran reported feeling depressed on average 5 out of 7 days of the week, trouble falling asleep and staying asleep, overeating, trouble with short-term memory, auditory hallucinations, panic, trouble going to work, lack of motivation, and low energy. An August 2017 DBQ indicates that the Veteran has diagnoses of bipolar disorder and panic disorder, and that it is possible to differentiate what symptoms are attributable to each diagnosis. The psychologist reported that his bipolar disorder resulted in depressed mood, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances including work or a work-like setting. His panic disorder resulted in anxiety, panic attacks, and chronic sleep impairment. The symptoms were noted as interactional. The psychologist noted that the Veteran’s psychiatric disability caused 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 reported that his mental health symptoms interfere with his relationships, and that the does not want to be “bothered” with his family members. He stated that he generally feels depressed, denied having any friends, and that he prefers to be alone most of the time. The Veteran reported feeling depressed most days, sleeping approximately 2 or 3 hours per night, an inconsistent appetite, and sometimes going 2 weeks without bathing. He endorsed difficulty concentrating, reported fatigue and low energy, but denied impulsive behavior. Based on a preponderance of the evidence, the Board finds that the Veteran’s panic disorder symptomatology does not more nearly approximate that which is contemplated by a 100 percent disability rating at any time during the appeal period. While the Veteran has reported feeling depressed, chronic sleep impairment, self-isolation, difficulty concentrating, auditory hallucinations, trouble with short-term memory, and occasional neglect of personal hygiene, the medical and lay evidence of record does not indicate that the Veteran suffered from grossly inappropriate behavior, persistent danger of hurting self or others, and memory loss for names of close relatives, own occupation, or own name, disorientation to time and place, or any other symptomatology resulting in total occupational and social impairment. While the Veteran described difficulty establishing and maintaining social relationships, preferring to self-isolate, he has maintained a relationship with his wife of over 18 years, denied impulsive behavior, and the August 2017 psychologist noted that the Veteran’s psychiatric disability caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Additionally, the Veteran reported maintaining employment with the Miami VA which indicates that the symptoms and impairment, while significant, did not more nearly approximate total social and occupational impairment. The Veteran’s symptoms and overall impairment thus reflect that his disability picture more nearly approximates those contemplated by the 70 percent schedular rating for panic disorder and not those in the criteria for a 100 percent rating. The preponderance of the evidence thus reflects that the Veteran had neither the symptoms nor overall level of impairment that more nearly approximates total occupational and social impairment, therefore a 100 percent disability rating for the Veteran’s panic disorder is not warranted. The benefit of the doubt doctrine is not for application in this regard. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Therefore, remand for referral for extraschedular consideration is not warranted. 2. TDIU The issue of entitlement to a TDIU is a potential part of an initial rating claim when such claim is expressly raised by the Veteran, or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In June 2017, the Veteran submitted a VA Form 21-8940 which indicated that his service connected disabilities prevented him from securing or following any substantially gainful occupation. Given the evidence of unemployability due to his service connected disabilities, the issue of entitlement to a TDIU was raised as part and parcel of the claim for an increased rating for panic disorder. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. 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 by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Here, the Veteran is service connected for panic disorder, rated 70 percent disabling from August 1, 2010; right 5th toe fracture residuals, rated 10 percent disabling from January 10, 2008; and tinnitus, rated 10 percent disabling from April 5, 2019. Therefore, as the Veteran has a combined rating of at least 70 percent with one disability rated at least 40 percent disabling, he is eligible for consideration for a TDIU on a schedular basis. See 38 C.F.R. § 4.16 (a). Nonetheless, to grant TDIU it must be found that the Veteran is unable to secure or follow a substantially gainful occupation because of his service connected disabilities. A June 2013 VA 21-8940 indicates that the Veteran has 4 years of a high school education, and reflects that he worked in housekeeping for about 13 years, and most recently as a recreation aid for a little over a year. The Veteran’s April 2017 VA 21-8940 reflects that he last worked full-time and became too disabled to work January 1, 2010. He also reported that the most he earned in one year was $12,000.00 in 2016 as a housekeeper at the Miami VA. The Veteran stated that his current employers at Miami VA provide accommodations allowing him to take time off due to his panic disorder. In a March 2017 letter, the Veteran’s vocational rehabilitation counselor stated that the Veteran was unable to perform his work duties on several occasions due to his medical condition. He opined that the Veteran is unable to maintain gainful employment based upon his psychiatric disabilities, among other disabilities. May 2019 psychiatry notes reflect that the Veteran works as a housekeeper at Miami VA. A July 2019 audiologist noted on a DBQ that the Veteran’s tinnitus impacts his ability to work as it interferes with his ability to communicate at work. In a February 2020 Report of General Information, it was noted that the Veteran’s attorney stated that the Veteran was working, but was making below the poverty threshold and could not otherwise work because of his service connected disabilities. Several unsuccessful attempts had been made to verify the Veteran’s employment status, wages, and hours. Based on the foregoing, the Board finds that the Veteran’s service connected panic disorder precludes him from securing and following substantially gainful employment for which the Veteran would otherwise be qualified. The Veteran’s work history has involved working for VA as a recreation aid and in housekeeping, but the evidence reflects that his panic disorder precludes him from being able to cope with the stresses of work due to his feeling depressed, need to self-isolate, and his reported difficulty concentrating. Additionally, the Veteran has competently and credibly reported that he suffers from chronic sleep impairment as well as panic attacks which could severely impact his ability to adequately perform his duties, and the Veteran’s vocational rehabilitation counselor opined that the Veteran’s panic disorder and other disabilities preclude him from maintaining gainful employment. The Board notes that the Veteran reports that he is currently employed with the Miami VA as a housekeeper, and while attempts to verify the Veteran’s employment status, wages, and hours have been unsuccessful, the Veteran has reported that the most he has earned in a year was $12,000 in 2016 and that his employer makes accommodations for the Veteran’s disabilities. As stated above, marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. In 2016, the poverty threshold for one person was $12,486. See http://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As the Veteran’s highest annual income falls below the poverty threshold, the Board finds the Veteran’s current employment marginal, thus not considered substantially gainful employment. Therefore, the preponderance of the evidence thus reflects that the Veteran’s service connected disabilities render him unable to secure or follow substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. While the Veteran indicated in his April 2017 VA 21-8940 that he last worked full-time January 1, 2010, the Board will not specify the effective date of the TDIU to allow the RO to do so in the first instance. See Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order) (“To the extent that [the appellant] is arguing that the Board must assign, sua sponte, an effective date once it awards a rating of TDIU on appeal from an RO decision, such an argument is unavailing unless an NOD is then of record as to the downstream issue of an effective date for the assignment of that rating.”) Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.