Citation Nr: 21015244 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-59 089 DATE: March 17, 2021 ORDER Entitlement to a 70 percent rating, and no higher, for psychiatric disability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire appeal period, resolving all doubt in the Veteran’s favor, his psychiatric disability was manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. The evidence supports a finding that the Veteran’s service-connected disabilities are of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, and no higher, for psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9413. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to March 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran offered testimony at a Travel Board hearing at the Cleveland, Ohio RO in May 2019. The matter was remanded in May 2019 for further development, to include a contemporaneous VA examination. The Veteran was denied a TDIU in a June 2020 rating decision. He did not appeal that rating decision. However, the evidence shows that the Veteran contended he was unemployable since 2009. See December 2020 independent medical evaluation (IME) report from M.L.C., MD. Therefore, the Board finds that the issue of entitlement to TDIU has been raised as part and parcel of the increased rating claim on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Finally, the December 2020 IME report indicates that the Veteran’s current headache disability is secondary to the Veteran’s service-connected psychiatric disability. A September 2020 rating decision denied the Veteran’s headache disability claim. He is advised he can file an appropriate notice of disagreement with that rating decision. 1. Entitlement to a 70 percent rating, and no higher, for psychiatric disability The Veteran is currently in receipt of service connection for a psychiatric disability characterized as anxiety evaluated as 30 percent disabling. Thus, the question now before the Board is whether his psychiatric disability symptomatology is more severe such that he should be compensated at a higher disability rating at any point during the appeal period. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to obtain an increased rating of 50 percent the Veteran must show that he suffers from 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when 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 rating is warranted when there is 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. To be assigned a rating, a Veteran need not demonstrate the presence of all, most, or even some, of the symptoms listed as examples in the rating criteria. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The key element for a rating under the General Formula for Mental Disorders is the degree of social and occupational impairment caused by those symptoms. Further, the United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. For the entire appeal period, the Veteran’s psychiatric symptoms most closely approximate those warranting a 70 percent rating. In reaching this conclusion, the Board has considered both the medical and lay evidence describing the Veteran’s symptoms. The competent and credible evidence, that includes VA examination reports, VA and private treatment records, lay statements, testimony, and a December 2020 IME report from M.L.C., MD, establishes that the Veteran’s psychiatric disability was manifested by symptoms such as irritability; difficulty controlling his anger; intermittent suicidal ideation; insomnia; nightmares; and avoidance behaviors, including social withdrawal, feelings of detachment, and loss of interest in activities. He reported experiencing a depressed mood; intrusive memories related to his military service, including flashbacks; hypervigilance; and an exaggerated startle response. He indicated that his irritability and anger occasionally resulted in strained relationships. The December 2020 IME report specifically documents that the Veteran’s symptoms that have been continuous since 2009 have included social isolation, emotional distancing, irritability, anger, weight alteration, sadness, hopelessness, loss of focus and concentration, physical manifestations of psychiatric disease, despair, persistent suicidal ideation with suicide attempts, difficulty in understanding complex commands, impaired judgement, abstract thinking is impaired, difficulty in adapting to stressful circumstances, including work, he has been unable to establish and maintain effective relationships, he has impaired impulse control. Collectively, these symptoms are of the type, extent, severity, and/or frequency indicative of occupational and social impairment in most areas of the Veteran’s life, including work, social relations, judgment, thinking, or mood. As such, the Board finds that the preponderance of the evidence supports the award of a 70 percent rating for the entire appeal period. The Board finds, however, that the Veteran’s psychiatric symptoms do not reflect, and the Veteran does not report, total occupational and total social impairment at any point during the appeal. A 70 percent rating, but no higher, is warranted for the entire period on appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Entitlement to a TDIU Giving the Veteran the benefit of the doubt, the Board finds his service-connected psychiatric disability have rendered him unable to secure and follow a substantially gainful occupation. A Veteran will be entitled to a TDIU upon establishing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. The Veteran is currently service connected for a psychiatric disability rated at 70 percent; as well as other service-connected disabilities. He meets the schedular criteria for eligibility to be considered for TDIU under the provisions of 38 C.F.R. § 4.16(a). The December 2020 IME examiner observed the Veteran’s symptoms have essentially impaired him vocationally, interpersonally, intellectually, in financial management, and regarding judgement, impulsivity and depression. As a result, the provider found the Veteran is permanently and totally disabled to perform any occupational job. Given the Veteran’s limitations, and his background, including educational history and past employment, and giving him the benefit of the doubt, the Board finds that his service-connected psychiatric disability precludes most employment. A TDIU is granted. The Board will allow the RO to assign the appropriate effective date when it implements the Board’s decision. Urban v. Principi, 18 Vet. App. 143, 145 (2004) (per curiam order). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. McPhaull, 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.