Citation Nr: 21013359 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-39 134 DATE: March 9, 2021 ORDER Entitlement to an increased disability rating of 70 percent for a psychiatric condition is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s psychiatric condition has manifested as occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected disabilities have precluded him from obtaining and maintaining substantially-gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased disability rating of 70 percent for a psychiatric condition have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9411, General Rating Formula for Mental Disorders. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to January 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of August 2013 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. Following the rating decision on appeal, the Veteran timely filed his notice of disagreement (NOD) in November 2013. The RO issued a statement of the case (SOC) in October 2014 and the Veteran’s timely appeal to the Board followed later that month. 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. See October 2014 VA Form 9 at 1. Following a supplemental statement of the case (SSOC) in July 2015, the Board denied the Veteran’s claims in a decision of May 2018. See May 2018 Board Decision at 13-20. The Veteran subsequently appealed this decision to the Court of Appeals for Veterans Claims (CAVC). The CAVC vacated and remanded the Board’s decision for further adjudication, finding that the Board had not adequately explained its decision to discount the probative weight of two private disability benefits questionnaires (DBQ) submitted by the Veteran. See December 2019 CAVC Decision at 100-101. The CAVC also found that the issue of entitlement to a TDIU was inextricably intertwined with the Veteran’s PTSD claim. See id. at 101-102. 1. Entitlement to an increased disability rating 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). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s psychiatric condition is evaluated as 30 percent disabling from April 2012 under Diagnostic Code (DC) 9411. 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 May 2018. See May 2018 Board Decision at 13-20. The CAVC, in vacating and remanding this decision, found that the Board had not adequately explained its decision to give limited probative weight to two DBQ submitted by the Veteran in December 2013 and April 2015. See December 2019 CAVC Decision at 100-101. The Board notes that each of these DBQ were submitted by the same treating psychologist. See December 2013 DBQ at 6; cf. June 2015 Medical Treatment Records at 14. In the December 2013 DBQ, despite finding a variety of symptoms drawn from the 30, 50, and 70 percent rating criteria, this psychologist nonetheless opined that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning. See December 2013 DBQ at 5; cf. id. at 2. In the April 2015 DBQ, the treating psychologist opined that the total functional impairment of the Veteran’s symptoms was best approximated by the 70 percent rating criteria. See June 2015 Medical Treatment Records at 10. The April 2015 DBQ likewise found a variety of symptoms drawn from the 30, 50, and 70 percent rating criteria. See id. at 13. In attached treatment records, the treating psychologist notes that the Veteran “has been experiencing significant emotional distress, and emotional reactions ranging from extreme depression to anger anxiety,” but also notes that “some progress has been made, and a quicker ‘bounce back’ has occasionally been noticed… [while] elimination of PTSD symptoms is unlikely, [his] improved emotional state and behavioral manifestations has been encouraging.” See id. at 15-16. As discussed in the Board’s previous decision, separate VA examinations of August 2013 and July 2015 found occupational and social impairment substantially less than that asserted by the December 2013/April 2015 treating psychologist. See August 2013 VA Examination Report at 2; see also July 2015 VA Examination Report at 1; see also May 2018 Board Decision at 15-17. The Board notes that unlike the private psychologist’s December 2013 DBQ, the VA examiners found symptoms that were consistent with their overall conclusions as to the severity of the Veteran’s functional impairment. See August 2013 VA Examination Report at 5; see also July 2015 VA Examination Report at 5. The July 2015 VA examiner remarked that the Veteran’s psychiatric symptoms “are minimally disruptive to his life, with residual emotional/behavioral [sequelae] limited to tendencies toward irritability, impatience, and mild depression.” See July 2015 VA Examination Report at 5. The Board notes that the Veteran agreed with this assessment when it was presented to him at the time. See id. at 5. In reaching this conclusion, the July 2015 VA examiner noted that the Veteran maintains relationships with family and several close friends. See id. at 2-3 (describing shared activities, including vacations and social events). Because the conclusions reached by the VA examiners and the December 2013/April 2015 treating psychologist were so dramatically different, an addendum opinion was requested to explain their apparent contradictions. This addendum was provided in July 2015 by the August 2013 VA examiner, who opined in pertinent part as follows: The only documents supporting the non-VA psychologist’s assessment of [the Veteran’s] condition are the [lay] statements by [his] wife and daughter, which note his difficulties controlling his temper and his impatience. However, neither symptom is discussed in relationship to [the Veteran’s] combat stressors, and neither symptom is noted as substantially impairing. The non-VA psychologist indicates on the DBQ, on the other hand, that [the Veteran] has poor impulse control leading to violence, is unable to maintain relationships, suffers from impaired reasoning ability, and has difficulty comprehending complex instructions, among other symptoms. The psychologist does not, unfortunately, give examples of behaviors illustrative of these symptoms, and does not indicate how any of the checked symptoms are related to a diagnosis of PTSD. Based on [the Veteran’s] presentation to the July 2015 [VA] examiner and the absence of any reference to seriously impairing psychiatric symptoms in the buddy statements (other than irritability), it appears likely that the non-VA psychologist misinterpreted the symptom checklist (e.g. thought that an isolated instance of a symptom was sufficient to endorse the symptom on the DBQ). Because the [July 2015 VA] examination provides a good deal of detailed (and verifiable) information about [the Veteran’s] generally unimpaired functioning (e.g. trips to visit daughter, vacationing upstate), its evidentiary value appears to be much greater than the DBQ’s completed by the non-VA psychologist who is, incidentally, treating [the Veteran] and is thus more likely to be an advocate rather than a neutral evaluator. It should also be noted that the [July 2015 VA] examination notes behaviors and functioning similar to those noted in the 2013 [VA] examination report. See July 2015 Correspondence at 1 (emphasis added). Because this addendum opinion thoroughly explains its reasoning and is based on a synthesis of all the examination findings then-available, the Board assigns it significant probative weight. The Board again assigns the December 2013/April 2015 treating psychologist’s DBQ only limited probative weight for the following reasons. First, the Board notes the internal inconsistency of the December 2013 DBQ, which finds multiple symptoms drawn from higher rating criteria yet concludes that the Veteran’s psychiatric condition was somehow not severe enough to interfere with his occupational and social functioning at all. Second, the Board notes that the August 2013 and July 2015 VA examiners independently reached similar conclusions concerning the functional impairment of the Veteran’s psychiatric condition. The Board is mindful that “[different] examiners, at different times, will not describe the same disability in the same language” and that “[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. Finally, the Board finds the July 2015 addendum opinion’s explanation as to why the private psychologist likely misinterpreted the symptom checklist and was influenced to act as an advocate rather than as a neutral evaluator persuasive and credible. While “[mental] health professionals are experts and are presumed to know the [medical diagnostic] requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis[,]” the relevant question in this case is not whether the treating psychologist correctly diagnosed the Veteran’s psychiatric condition, but rather whether he correctly evaluated its occupational and social impairment for VA compensation purposes. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Board’s reevaluation of the evidence leads it to the same conclusions that it reached in its May 2018 decision concerning the probative weight of the August 2013 and July 2015 VA examiners relative to the December 2013/April 2015 private psychologist. While the Veteran cites several cases in support of the argument that a different weighing of this evidence is warranted, the Board notes that these cases are not binding precedent. See January 2021 Appellate Brief at 6-7; see also U.S. Vet. App. R. 30(a) (providing that nonprecedential cases may be cited “only for [their] persuasive value… provided that the party states that no clear precedent exists on point”) (emphasis added). However, this does not end the Board’s analysis in this case, because additional relevant evidence has been submitted during the pendency of the Veteran’s appeal following the CAVC’s remand. This additional evidence includes an August 2020 statement from the Veteran as well as a September 2020 private medical examination from a separate examiner. As an initial matter, the Board notes that the most frequently-observed symptom of the Veteran’s psychiatric condition, reflected in both lay observations and medical treatment reports throughout the claims file, is anger or irritability. See August 2015 Medical Treatment Records at 2-3 (providing records of 19 treatment visits between December 2013 and August 2015, of which 16 expressly mention anger, irritability, or other emotional disturbances); see also August 2013 VA Examination Report at 3 (noting previous workplace fights “occasionally,” and asserting the loss of several jobs due to poor temper); see also November 2013 Lay Statements (providing statements from the Veteran’s spouse, sister-in-law, and daughter describing impatience and verbal outbursts). The Board is mindful that the criteria listed in the General Rating Formula are neither individually dispositive nor collectively exhaustive, and that symptoms related to anger or interpersonal conflict appear at varying stages of the rating criteria. See Mauerhan, 16 Vet. App. at 442; see also 38 C.F.R. § 4.130, General Rating Formula (noting “suspiciousness” at 30 percent, “disturbances of motivation and mood” and “difficulty in establishing and maintaining effective work and social relationships” at 50 percent, and “impaired impulse control[,] such as unprovoked irritability with periods of violence” at 70 percent). After reviewing the record, the Board concludes that with the addition of the September 2020 private examiner’s opinion and the Veteran’s August 2020 statement, the total evidence of record now supports the inference that it is at least as likely as not that the Veteran’s psychiatric condition is best approximated by the 70 percent rating criteria. See 38 C.F.R. § 4.126; see also 38 C.F.R. § 4.130, General Rating Formula. In reaching this conclusion, the Board notes that the Veteran’s August 2020 statement focuses primarily on his symptoms of anger or irritability. See January 2021 Correspondence at 1-2. The Board notes that this statement is partially inconsistent with the Veteran’s own prior assertions regarding the severity of his symptoms. See id. at 1 (asserting that “[since] I stopped working, I still have to fight every day to try not to fly off the handle[,]” that “I have one buddy from service left and I see him once a year… [he’s] the only one I can talk to[,]” and that “I sit in my chair and watch TV almost 24/7, the same films over and over to try to get the thoughts about my service to stop for a moment”); cf. July 2015 VA Examination Report at 2 (describing “loving relationships with all of his family members,” noting that he and his wife “have friends, with whom they enjoy shared experiences like going out for dinner,” and noting that he “has a few close friends, both [locally] and elsewhere… [and] keeps in touch with his Army buddies… [including] an old military friend in Virginia”); see also id. at 5 (providing the Veteran’s agreement with the VA examiner’s proposed assessment that his psychiatric symptoms “are minimally disruptive to his life, with residual emotional/behavioral [sequelae] limited to tendencies toward irritability, impatience, and mild depression”). However, the Board also notes that the September 2020 private examiner opined that the Veteran’s psychiatric condition was best approximated by the 70 percent rating criteria throughout the entire rating period on appeal. See January 2021 Appellate Brief at 31-32. In addition to interviewing the Veteran, the September 2020 examiner extensively reviewed the evidence of record and cited to applicable medical literature in support of her conclusion as to the severity of the Veteran’s symptoms. See id. at 27-33. While the severity of symptoms asserted in the Veteran’s August 2020 correspondence and the September 2020 private examiner’s report is partially inconsistent with the VA examiners’ reports, it is somewhat supported by the lay statements of the Veteran’s family members. While these statements also do not reflect equivalent severity of symptomatology, the Board nonetheless affords them moderate probative weight because they are based on opportunities to observe the Veteran during the normal course of his daily social functioning. See November 2013 Lay Statement (Spouse) (observing that the Veteran “talks to very few… and has a very short fuse”); see also November 2013 Lay Statement (Sister-in-law) (observing that the Veteran “has become increasingly short[-]tempered, irritable[,] and more withdrawn as the years go by”); see also November 2013 Lay Statement (Daughter) (observing that the Veteran “does enjoy going out with me and my children [but] he does not associate with his friends often anymore” and “has become increasingly abrupt with my mother”). These statements, together with the Veteran’s August 2020 correspondence and the September 2020 private examiner’s report, are sufficient to at least place the evidence of record in equipoise as to whether the functional impairment of the Veteran’s psychiatric condition is best approximated by the 70 percent rating criteria. 38 U.S.C. § 5107. The assignment of such a rating is therefore warranted. 38 C.F.R. § 4.130, General Rating Formula. However, because none of the evidence of record supports the conclusion that the Veteran’s psychiatric condition results in “total occupational and social impairment,” a 100 percent rating is not warranted. Id. 2. 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. “Substantially gainful employment,” in this context, is that which is more than marginal in nature. 38 C.F.R. § 4.16(a). For the Board to assign a TDIU in the first instance, the Veteran must have a single service-connected disability rated at least 60 percent disabling, or else a combined disability rating of 70 percent with at least one disability of 40 percent or greater. See 38 C.F.R. § 4.16(a). In addition to the 70 percent disability rating for the Veteran’s psychiatric condition assigned above, the record reflects that his service-connected disabilities during the applicable rating period include a 10 percent rating for scarring of the left eye, a 10 percent rating for scarring of the face, a 10 percent rating for tinnitus, hearing loss rated as noncompensable prior to July 2015 and as 30 percent disabling thereafter, and noncompensable ratings for a left eye cataract and for scarring of the hands and torso. See id. The record further reflects that the Veteran has a high school education and has been employed as a cement mason and forklift operator. See January 2021 VA Form 21-8940 at 2-3. The Veteran asserts that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. See January 2021 Correspondence at 2; see also id. at 1 (asserting that “I retired in 2009 after working as a union cement mason… I found I just couldn’t do it anymore and it was time to retire”). In adjudicating the Veteran’s claim, the Board is mindful that “[a] high [disability] rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (emphasis in original). The Board is also mindful that it may not consider the Veteran’s age or non-service-connected disabilities when adjudicating entitlement to a TDIU. See 38 C.F.R. § 4.16(a). Furthermore, there is no requirement that the VA provide a vocational expert to assess whether other jobs suitable to the Veteran’s skills and experience are available in the national economy. Smith v. Shinseki, 647 F.3d 1380, 1383-1384 (Fed. Cir. 2011). The Board also notes that the evidence of record supports the inference that he retired from his previous employment due in part to non-service-connected disabilities. See August 2013 VA Examination Report at 3 (providing that the Veteran “worked as a cement finisher… from 1984 until 2011 or 2012, when he retired”); see also July 2015 VA Examination Report at 3 (providing that the Veteran retired because “he was physically tired and no longer able to easily meet the demands of the concrete business”). However, the September 2020 private examiner has subsequently opined that the Veteran’s psychiatric condition has become sufficiently severe as to contribute to his inability from securing and maintaining substantially gainful employment. See January 2021 Appellate Brief at 31. In reaching this conclusion, the September 2020 examiner specifically noted that: [The Veteran] would at least as likely as not have to miss 2 days of work per month due to psychiatric symptoms and… would also at least as likely as not have to leave early from work at least 2 days per month due to his mental health problems… [He] would at least as likely as not more than once per month respond in an angry manner but would not actually become violent. See id. As discussed above, the Board finds that the September 2020 private examiner’s opinion as to the severity of the Veteran’s symptoms is sufficient to place the balance of the evidence in equipoise despite the VA examiners’ prior contrary conclusions. 38 U.S.C. § 5107. The assignment of a schedular TDIU based on an combinations of all the Veteran’s service-connected disabilities is therefore warranted. 38 C.F.R. § 4.16. 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.