Citation Nr: 21015516 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-15 115 DATE: March 17, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for a service-connected acquired psychiatric disorder for the period on appeal prior to August 12, 2015 is denied. Entitlement to a compensable disability rating for service-connected duodenal ulcers is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period on appeal prior to August 12, 2015 is denied. FINDINGS OF FACT 1. Prior to August 12, 2015, the Veteran’s acquired psychiatric disorder symptoms resulted in at worst, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran’s duodenal ulcer did not manifest in mild disability as characterized recurring symptoms once or twice yearly. 3. The Veteran did not meet the schedular TDIU criteria, and his service-connected disabilities alone did not result in occupational impairment sufficient to warrant extraschedular referral. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 30 percent for a service-connected acquired psychiatric disorder for the period on appeal prior to August 12, 2015 have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. 2. The criteria for entitlement to a compensable disability rating for service-connected duodenal ulcers have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.114, DC 7305. 3. The criteria for entitlement to a TDIU for the period on appeal prior to August 12, 2015 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to July 1977. During the pendency of the appeal, the Veteran died in June 2020. In October 2020, the Department of Veterans Affairs (VA) Regional Office (RO) granted substitution to the appellant over the current claims. Increased Rating 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 Diagnostic Codes. 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). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate 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 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. 1. Entitlement to a disability rating in excess of 30 percent for a service-connected acquired psychiatric disorder for the period on appeal prior to August 12, 2015 The Veteran’s service-connected acquired psychiatric disorder is rated as 30 percent disabling prior to August 12, 2015 under VA’s General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9413. Notably, as of August 12, 2015, a 100 percent rating was established. Under the formula, a 30 percent evaluation is warranted where there is 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 symptoms such 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 evaluation is warranted where there is 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 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; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that the Veteran need not exhibit “all, most, or even some” of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Id. The Veteran had a mental status examination in August 2012. The Veteran’s mood was depressed. His affect was appropriate. His speech was normal, and his appearance was kempt. The Veteran was cooperative, and his thought process was intact. The Veteran’s thought content was within normal limits. The Veteran denied suicidal or homicidal ideation. The Veteran had an examination for his acquired psychiatric disorder in November 2013. The Veteran exhibited symptoms including anxiety and panic attacks that occur weekly or less often. The Veteran reported that his first wife died in a motorcycle accident in 1977. The Veteran reported that he was married a second time and divorced in 1988. He reported that he remains married to his third wife. The Veteran was casually dressed, clean, alert, and oriented times three. He was pleasant and cooperative during the interview. There was no psychomotor agitation or retardation noted. His mood was neutral, affect mildly constricted and congruent, and his speech had regular rate, amount, rhythm and volume. The Veteran denied homicidal or suicidal ideation. There was no evidence of active hallucinations, frank delusions or obsessions. The Veteran’s thought process was logical, and goal directed. The Veteran’s memory, attention, and concentration were grossly intact. The Veteran demonstrated good insight and judgment. Treatment records during this period are consistent with these examinations. The Veteran’s mood is fluctuates between normal and angry/frustrated due to external issues (e.g., politics, family differences, disputes with a neighbor). These records document sleep impairment due to nightmares. They also note some anxiety with relief from medications. The Board concludes that the objective medical evidence show disability that more was appropriately rated at 30 percent for the appellate period prior to August 12, 2015. See 38 C.F.R. § 4.7. A rating greater than 30 percent is not appropriate for the period prior to August 12, 2015 because the Veteran did not exhibit occupational and social impairment with reduced reliability and productivity during the period prior to August 12, 2015. Specifically, throughout the period prior to August 12, 2015, the Veteran’s symptoms were not on par with the severity of those contemplated by the 50 percent rating or higher. The Veteran did not exhibit symptoms of circumstantial, circumlocutory, or stereotyped speech; difficulty in understanding complex commands; impaired judgment; or impaired abstract thinking. The Veteran did experience anxiety and panic attacks that occur weekly or less often, but there is no evidence to suggest that the Veteran’s anxiety and panic attacks were of the severity to merit a 50 percent rating prior to August 12, 2015. Ultimately, the Veteran’s symptoms more closely approximate those for a 30 percent rating, without rising to the level required for a 50 percent rating or higher for the period prior to August 12, 2015. The Board acknowledges that 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, 16 Vet. App. at 442. The Board is to consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment. If the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate equivalent rating should be assigned. Id. In this case, however, the Board concludes that the Veteran’s acquired psychiatric disorder symptoms did not cause occupational and social impairment with reduced reliability and productivity as contemplated for a 50 percent rating. 2. Entitlement to a compensable disability rating for service-connected duodenal ulcers The Veteran is in receipt of a noncompensable evaluation for duodenal ulcer under DC 7305. Diagnostic Code 7305 is specific to duodenal ulcer. A 10 percent disability rating is provided when impairment is mild, with recurring symptoms once or twice yearly. A 20 percent rating is warranted for moderate disability with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent rating is warranted for moderately severe symptoms that are less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four of more times a year. A 60 percent rating is warranted for severe symptoms where pain is only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7305. The Veteran had an examination for his duodenal condition in September 2013. The examiner diagnosed the Veteran with gastroesophageal reflux disease (GERD). The Veteran reported that he has problems with spicy foods. Additionally, the Veteran reported that he cannot eat hot foods, cabbage, bananas, tea, or tomatoes. The condition required continuous medication. The Veteran reported experiencing abdominal pain that was relieved by standard ulcer therapy. There were no recurring episodes of severe or non-severe symptoms. There was also no evidence of anemia, weight loss, abdominal pain, vomiting, hematemesis, melena or nausea. There were no incapacitating episodes. No other pertinent physical findings, complications, conditions, signs or associated symptoms were noted. Significantly, the examiner noted that there was not a diagnosis of bulbar ulcer, indicating that this was a very old diagnosis and cannot be used for the Veteran’s current day condition. In VA treatment records from March 2019, the Veteran denied any abdominal pain or ongoing GERD symptoms. The Veteran indicated that he was intermittently on pantoprazole 40 mg twice a day. The medical evidence of record does not show that the Veteran’s duodenal ulcer condition manifested in mild disability with recurring symptoms once or twice yearly. The medical evidence indicates that the Veteran’s previously diagnosed duodenal ulcer has been asymptomatic throughout the appeal. Specifically, the September 2013 examiner attributed the Veteran’s symptoms to his non-service-connected GERD. Notably, in December 2013, service connection for GERD, claimed as ulcers, was denied. The February 2016 rating decision that granted service connection for duodonal bulbar ulcer did so on the basis of a chronic disability first diagnosed in service and continuing to exist. The disability of GERD remained denied. Therefore, the Board is unable to grant a compensable rating based on GERD symptoms, when that disability is not service-connected. As a result, a compensable evaluation is not warranted. The Board has considered the Veteran’s contention that his duodenal ulcer disability warrants a compensable rating. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board has considered the Veteran’s reports along with the medical evidence of record. Here, the most probative evidence consists of the September 2013 examination and the Veteran’s medical treatment records. That objective medical evidence establishes that the duodenal ulcer does not manifest in mild disability, as characterized by recurring symptoms once or twice yearly. It is asymptomatic, and the Veteran’s reported symptoms are the result of his non-service-connected GERD. Therefore, a compensable evaluation is not warranted. As a preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107 (b). 3. Entitlement to a TDIU for the period on appeal prior to August 12, 2015 It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16 (a). The Veteran’s compensable service-connected disabilities are anxiety disorder, rated as 30 percent from April 16, 2012 and 100 percent from August 12, 2015; and right knee degenerative joint disease, rated as 10 percent. While there are other service-connected disabilities, they are rated non-compensably. Accordingly, the Veteran does not qualify for a schedular TDIU prior to August 12, 2015 because his service-connected disabilities did not meet the requirements of 38 C.F.R. § 4.16 (a). Because the Veteran’s combined rating did not meet the percentage standards of 38 C.F.R. § 4.16 (a) for the period on appeal prior to August 12, 2015, the claim for a TDIU prior to August 12, 2015 may be considered only under 38 C.F.R. § 4.16 (b) on an extraschedular basis. An extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16 (a); in such cases, the rating authority should refer the matter to the Director of the Compensation Service for extraschedular TDIU consideration. 38 C.F.R. § 4.16 (b). The Board concludes that referral for an extraschedular TDIU is not warranted in this case. In this regard, the preponderance of the evidence is against a finding that the Veteran was unable to secure or follow substantially gainful employment due to her service-connected disabilities. The Veteran completed a VA form 21-8940 in November 2019, indicating that he last worked full time in April 2010. The Veteran reported that he previously worked as a truck driver. The Veteran indicated that he completed high school. Additionally, the Veteran reported that he did not attend college and had no other additional education or training. A September 2013 examination for the Veteran’s duodenal ulcer disability indicated that his service-connected disability did not impact his ability to work. The Veteran had an examination for his right knee disabilities in September 2013. The examiner noted that the Veteran’s right knee disability impacted his ability to work. Specifically, the examiner indicated that the Veteran could sit or stand for two hours total during an eight-hour workday. Additionally, the examiner noted that would be limited to walking 500 yards during an eight-hour workday. The examiner stated that the Veteran’s ability to lift was not impacted. The Veteran had an examination for his anxiety disorder in November 2013. The Veteran stated that he worked as an auto mechanic in Germany during his active duty service. Additionally, the Veteran reported that he worked as a truck driver from 1978 to 2009. He stated that he worked for three companies as a long-haul driver but retired in 2009 because he “could not take it anymore” because his “leg was hurting bad.” The Veteran reported psychiatric disorder symptoms including anxiety and panic attacks that occur weekly or less often. The examiner opined that the Veteran’s anxiety disorder resulted 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. The Board finds that a referral for extraschedular TDIU is not warranted. Although the Veteran had some mobility issues due to his right knee disability, he was still likely able to secure and maintain substantially gainful employment. The Veteran was still able to walk short distances and sit for periods up to two hours. Additionally, although the Veteran had limited prior work experience and education, the Veteran was still likely able to secure and maintain employment based on his background as a truck driver and auto mechanic. Additionally, while the Veteran experienced some impairment due to his anxiety disorder prior to August 12, 2015, the Veteran’s symptoms at the time were described as mild by the November 2013 examiner. Furthermore, the Veteran’s anxiety symptoms would likely not prevent the Veteran from working in a more solitary position such as a truck driver. As the evidence does not show that the Veteran’s service-connected disabilities do not preclude employment, remand for referral of this case for consideration of an extraschedular TDIU for the period on appeal prior to August 12, 2015 is not warranted. Additionally, the Board recognizes that the Veteran was in receipt of Social Security Administration (SSA) disability benefits. However, SSA determinations, while probative, are not binding on the Board, as they involve the application of different legal standards. See Collier v. Derwinski, 1 Vet. App. 413 (1991). Specifically, the SSA considered non-service-connected disabilities, such as the back, as well as the Veteran’s age, which are factors that VA cannot consider. The Board notes that the Veteran is in receipt of a 100 percent disability rating for his service-connected acquired psychiatric disorder from August 12, 2015. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Special monthly compensation is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). In this case, entitlement to SMC has not been raised and there is no evidence that TDIU may be awarded independently of the Veteran’s acquired psychiatric disorder disability. As detailed above, the Veteran, in addition to being service-connected for an acquired psychiatric disorder, is also service-connected for right knee degenerative joint disease, right cutaneous nerve crush injury of the medial knee, and duodenal bulbar ulcers. Notwithstanding, as detailed above, the evidence does not suggest that the service-connected disabilities of right knee degenerative joint disease, right cutaneous nerve crush injury of the medial knee, and duodenal bulbar ulcers have prevented him from securing or following a substantially gainful occupation within the meaning of 38 C.F.R. § 4.16. Moreover, the Veteran does not meet the criteria for SMC. Although his acquired psychiatric disorder was assigned a 100 percent rating from August 12, 2015, the remaining disabilities are not independently ratable at 60 percent and there is no indication that the Veteran was housebound. Accordingly, there is no question or controversy for consideration by the Board with regard to entitlement to a TDIU for the period from August 12, 2015. See Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2011). In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David M. Sebstead, 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.