Citation Nr: 21024019 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-07 473 DATE: April 21, 2021 ORDER Entitlement to a 70 percent disability rating for mood disorder is granted. REMANDED Entitlement to an initial compensable rating for traumatic brain injury (TBI) prior to July 21, 2020 is remanded. Entitlement to a rating higher than 40 percent for traumatic brain injury (TBI) from July 21, 2020 is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether a mood disorder has caused severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas of life. CONCLUSION OF LAW The criteria for a 70 percent rating for a mood disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1990 to October 2000. This matter comes to the Board of Veterans’ Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In September 2015 and April 2020, the Board remanded the case for further development. The case is again before the Board for appellate review. Increased rating for mood disorder In September 2009, the Veteran claimed entitlement to service connection for an acquired psychiatric disorder. In the May 2010 rating decision on appeal, the RO granted the claim and assigned an initial 30 percent rating effective the date of claim. The Veteran asserts that a higher initial rating has been warranted. Law and regulations Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Separate compensable 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). The RO has rated the service connected mood disorder here under Diagnostic Code 9435 of 38 C.F.R. § 4.130. Thereunder, a 50 percent evaluation is warranted when 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Id. at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Symptomatology attributed to a nonservice-connected disability cannot be differentiated from symptomatology attributed to a service-connected disability unless medical evidence does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In the absence of such medical evidence, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence and analysis The evidence in this matter consists of lay assertions, VA treatment records, and VA compensation examination reports. For the following reasons the Board finds that an increased rating is warranted. In October 2009, the Veteran submitted correspondence stating that he was recently diagnosed with PTSD and that he has had numerous panic attacks. See October 2009 Statement in Support of Claim. The Veteran also indicated that he suffers from severe depression due to his in-service accident as well as the stress from not being able to get a job. In May 2010, the Veteran attended his first VA examination. The examiner noted that the Veteran presented as well-groomed, engaging, articulate, and cooperative. See May 2010 VA Examination. The mental status examination revealed the Veteran’s thought process was logical, coherent, and relevant. The examiner noted that the Veteran reported symptoms of depression and anxiety but that he did not present with overt signs of either. When asked what sort of mental problems he was having, the Veteran reported anger outbursts, constantly wanting to fight, trouble concentrating, short term memory problems, and zoning out. It was noted that the Veteran had a lifelong pattern of problems with authority and anger outbursts. He reported a flash temper and that he was in a lot of bar fights. While he denied overt homicidal thinking, he did say he gets extremely angry and wants to hurt people. There is a history of physical aggression and legal problems related to this. The Veteran reported random panic attacks which began two years prior but had lessened with medication. He described anhedonia, feelings of worthlessness and guilt, and reduced sexual desire. He also reported he was moody and experienced mood swings. He tried to avoid driving around large trucks as that reminded him of an in-service accident. Insomnia was reported which could relate to a number of issues including chronic pain. When asked how his mental health problems have impacted his work, the Veteran reported inconsistency and anger problems. The examiner noted that, despite this, the Veteran was able to move up to a supervisor role but could not keep up with the physical end of that job. The Veteran was unemployed at the time of the interview. Socially, he reported having two daughters and living with his parents. The Veteran also had a fiancé of three years, but she reportedly recently left because she could not handle the Veteran’s anger or mental health problems. The Veteran said that his brother was his best friend, and that he remained in contact with some Navy friends. The May 2010 examiner noted that during the interview the Veteran showed numerous scale elevations suggesting severe pathology including explosive outburst, possible manic symptoms, anger, agitation, poor reality testing, and possible psychotic tendencies as well as strong somatization tendencies. The examiner concluded that the Veteran was properly diagnosed as having a mood disorder not otherwise specified, intermittent explosive disorder, alcohol dependence in reported remission, and cocaine and prescription opiate abuse in reported remission. The examiner opined that it was a difficult case to evaluate in part because of evidence of some exaggeration in symptoms as well as variable report of history and symptoms. The examiner also indicated that there was evidence of trauma and maladjustment before the Navy and that it was difficult to separate out the impact of the mood disorder from the difficult childhood and poor choice of partners, but that the social and occupational impairment from the mood disorder itself accounts for approximately 50% of the GAF score of 50. The examiner opined that the Veteran’s outbursts were connected to his alcohol abuse and stated that there was concern regarding cocaine abuse. The examiner stated that the Veteran described a moderate negative impact of mental disorders, signs, and symptoms on occupational functioning, resulting in reduced reliability and productivity on the job. However, the examiner opined that the Veteran’s primary reason for not working appeared to be that the Veteran’s back condition as his prior job was too hard on his back. In March 2011, the Veteran completed a behavioral health intake. See March 2011 CAPRI Records. The Veteran stated that he has been angry his entire life and when he is angry, he is verbally and physically aggressive. The Veteran reported that he blacks out and does not remember what he does when angry. He has been in jail numerous times for assault. While he reported that he was not experiencing suicidal or homicidal plan or ideation at this time, he did acknowledge that he previously attempted suicide in 1998. He reported that he had not had alcohol in 8 months and had not used illicit drugs since 1998. The Veteran indicated that he has had some depression and anxiety but less than before. He reported having poor appetite and sleep, getting 3-4 hours of uninterrupted sleep at night, waking because of urination, pain, and nightmares with 1-2 nightmares a week. The Veteran indicated he has not experienced hallucinations, delusions, paranoia, or mood swings. The Veteran has been married twice and has been currently separated from wife for 7 years. The Veteran reports having one daughter. At the time of the intake, the Veteran was living in a house with his aunt and uncle in California. He indicated that he was disabled and awaiting unemployment at the time of his appointment and that he previously worked in pest control for 6 months and owned his own FedEx business for 2 years and window cleaning business for four years. The Board notes that the Veteran was granted Social Security Administration (SSA) disability benefits. SSA determinations are not binding on the Board, and it is the duty of the Board to assess the credibility and weight to be given such evidence. See Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992) (finding that SSA determinations should be given appropriate consideration and weight in determining to award or deny an appellant TDIU). The SSA found that the Veteran was disabled from June 2011 due to psychiatric illness and non-service-connected leg pain, back pain, and diabetes. At a July 2012 outpatient psychiatric evaluation, the Veteran reported having “bad anger problems.” See July 2012 CAPRI Records. He has had lifelong issues with his temper and controlling his anger, with a history of multiple arrests for domestic violence, battery, and assault. He indicated that he sees everyone as a threat, include the clinician. The Veteran reported depressive symptoms, feeling down when he thinks about his physical limitations due to the accident, diabetes, and hypokalemic paralysis. At the time of the evaluation, the Veteran was married and enrolled in a vocational rehabilitation program studying Nuclear Medicine Technology. The Veteran stated that “I get angry and blow up all the time…it could be anything, my wife, someone saying something to me, it doesn’t matter, I’ll just blow up.” The Veteran feels that since the 1998 automobile accident during active duty, his impulsivity has worsened. He said that his wife said that he is a “different beast.” He sleeps 3-4 hours per night with nightmares once a month with no change to his appetite or concentration. The Veteran denied suicidal and homicidal ideation, stating that his moods tend to be reactive, though he did report a suicide attempt in 2001. At the time of the examination, the Veteran lived with his daughter, wife of 17 years, and aunt. The clinician noted that the Veteran appeared for the interview pleasant and cooperative with good eye contact, but occasionally made provocative statements regarding his perceived high risk for violence. He informed the clinician that his mood was “fine for right now, but I could flip out at any time” with somewhat anxious appearing affect. The clinician noted that the Veteran’s insight was limited and judgment intact. In April 2014, the Veteran appeared for treatment for sleep medication as his mood reportedly became unstable with poor sleep. See April 2014 CAPRI Records. The clinician diagnosed the Veteran with bipolar disorder, unspecified at his appointment. The Veteran also completed a suicide risk assessment and was determined have a low risk for suicide. In July 2014, the Veteran attended a routine follow-up appointment. See July 2014 CAPRI Records. He shared that he was dropped from the vocational rehabilitation program because he missed his previous mental health appointment. The Veteran stated that he is “technically homeless” due to his loss of income through vocational rehabilitation program. The Veteran reported living in Florida from December until a couple weeks before the appointment, when he moved back to Texas. The Veteran’s wife continued to live in Florida with her parents and the Veteran denied any marital problems, stating they have a good relationship. He said everything was “great up until last week” when he was dropped from the program. The Veteran reported that his family was supportive with his father living nearby in Texas. He denied problems with sleep, appetite, anger, sadness, mood swings, and energy. The Veteran had logical, coherent, and goal-directed thought process with normal speech rate, tone, and rhythm. Notably, an addendum note indicates that the Veteran did not miss the appointment that lead to his expulsion from the program, he cancelled it beforehand. In May 2018, the Veteran had a mental health evaluation. See May 2018 CAPRI Records. He reported mood swings, anger, and agitation. The Veteran reported that 6 months prior he learned that his parents used his social security number illegally and that he owes the IRS money. Since then, the Veteran has experienced severe mood swings. The Veteran reported arguing with everyone, getting irritated very easily and fighting with his girlfriend who he claims is the most important thing in his life. He indicated that the Wednesday before the evaluation, he had an argument with his girlfriend where he took her phone and locked himself in the car. She was pounding on the window and he showed her his gun. He reported drinking 8 to 24 beers a night because he is unable to sleep but informed the clinician that he did not think that alcohol contributes to his irritability. The Veteran described his mood as angry, appetite low, interest and energy as fair. He has been able to go to work every day at the nursery. The Veteran agrees that he has extreme impulsivity and denied homicidal ideation, paranoia, or hallucinations. The Veteran attended another VA examination in May 2020. The examiner noted that the Veteran was appropriately groomed and dressed, with good eye contact. See May 2020 VA Examination. The mental status examination revealed the Veteran to be alert, attentive, and oriented to person, time, and place. His attitude was open, and cooperative, and his mood and affect were within normal limits. He revealed no evidence of delusions or paranoid and did not report suicidal or homicidal ideation or intent. The examiner noted that the Veteran reported symptoms of depression and anxiety but that the Veteran did not present with overt signs of either. Socially, he reported living with roommates and having a girlfriend. The Veteran reported some arguments with his girlfriend due to his issues with intimacy and performance, attributing his erectile dysfunction to his “fibro and pain.” Occupationally, he was employed full-time as an environmental engineer for the County of Chesterfield and reported that he has had some problematic interpersonal interactions at work “but [his] boss is a Marine, and it’s been swept under the rug.” but no write-ups suspensions, terminations or ADA accommodations. The Veteran reported from 2010 to present date there was no use of illicit drugs or misuse of prescription medication. The Veteran has 3-4 beer a month and quit cocaine about 2 years ago. The examiner opined that the Veteran’s Bipolar 2 disorder is at least as likely as not caused by or a result of the mental health issues for which he was already service connected. The Veteran reported at times not sleeping for 3 days, periods of irritability, being impulsive, periods of depressive symptoms, as well as problematic concentration. He stated, “if I could work 24 hours a day, I’d be perfect.” He also said, “I’m like a ticking time bomb” and “the littlest things set me off” and “when I feel threatened I want to lash out.” reported that historically he has had problematic interpersonal problems usually due to his needs to respond to everything that is said as well as emotionally pushing others away and self-sabotaging relationships. The Veteran reported being stressed at having to socially distance during the COVID-19 pandemic. The Veteran attended a VA examination in September 2020. The examiner noted that the Veteran’s behavior, speech and thought processes were all within normal limits and he was oriented, with no suicidal or homicidal ideation noted. See September 2020 VA Examination. The Veteran said about once per month he gets 0-2 hours of sleep per night for a 3-5-day period of time. He has lots of irritability, restlessness, impulsive spending, lack of focus, followed by depression. The mental status examination revealed that the Veteran’s thought process was logical, coherent, and relevant. The examiner noted that the Veteran reported symptoms of depression and anxiety but that the Veteran did not present with overt signs of either. The Veteran reported that he moved to Texas two weeks prior to the examination to live with his sister. The Veteran stated that since his move, he has been coaching a youth baseball team which he also did in Texas for 10 years prior to living and working for one year in Virginia. The Veteran stated he stayed in touch with a brother and two sisters but not his parents and two other siblings. Occupationally, he was unemployed at the time of the interview. The Veteran was an environmental engineer from 2019 until September 2020. He stated he left because his boss did not file a worker’s compensation claim for a back injury he suffered on the job in August 2020. Id. The Veteran was looking for work at the time of the interview and has a brother who owns a pizza shop in California who offered him a job. The Veteran had speech and thought processes were all within normal limits and he was oriented with no suicidal or homicidal ideation. The Veteran said that about once per month he gets 0-2 hours of sleep per night for a 3-5 day period of time (this occurs along with migraine headaches), he also has during 3-5 day periods: lots of irritability, restlessness, impulsive spending, lack of focus, then sleeps a lot for a day or two and feels depressed after the episode. If the Board finds that the positive and negative evidence relating to a Veteran's claim are in "approximate balance," then the placement of the risk of non-persuasion on the VA dictates a finding in favor of the claimant. Ortiz v. Principi, 274 F.3d 1361 (2001). Here there is positive evidence in support of the claim and negative evidence against it. Given this, the Board finds that the evidence is in a state of "equipoise." As such, affording the Veteran the benefit of the doubt, the Board concludes that the most probative evidence concerning the severity and functional impairment resulting from the Veteran's psychiatric symptoms most nearly approximates the criteria for a 70 initial evaluation for service-connected mood disorder claimed as PTSD from September 1, 2009. The Board finds that the severity, frequency, and duration of the Veteran's symptoms most closely approximate the symptoms contemplated by a 70 percent rating. Throughout the period on appeal, the Veteran showed impaired impulse control, including unprovoked irritability with periods of violence, towards both family members and strangers. The Veteran reported a history of bar fights and arrests as well as interpersonal conflict, particularly with romantic partners. To this point, it is obvious that the Veteran’s relationship with his family and friends were strained; however, there is no evidence that the Veteran was incapable of social interactions with others during this time. The Veteran reported having military friends, living with family, and finding employment in part due to connections with friends and family. The Veteran started and stopped attending school during the period on appeal due to mental health concerns. The Veteran also had work instability, leading to him having a variety of jobs such as working in pest control, owning a FedEx business, working as an environmental engineer, and having periods of unemployment. To the extent that social interactions with others was strained, this is compensated for in the 70 percent initial evaluation which the Board has found to be appropriate. In sum, the evidence is in a state of relative equipoise regarding whether acquired psychiatric illness has caused deficiencies in most areas of the Veteran’s life. Or perhaps more accurately, a preponderance of the evidence does not support the current 30 percent rating assigned during the appeal period. Amid the confusion in the evidence, this is an appropriate case in which to invoke VA’s doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant a 70 percent disability rating. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7. A 100 percent rating has not been warranted during the appeal period, however. The evidence does not support a finding that the Veteran’s psychiatric illness has caused total occupational and social impairment during. The Veteran has not exhibited gross impairment in thought processes and communication. The evidence indicates that the Veteran has been oriented, and has not experienced hallucinations, delusions, or psychosis. The evidence indicates anger and tension with family members but has not shown grossly inappropriate behavior. The evidence indicates anger irritability, but not to such an extent that he has been in persistent danger of hurting himself or others. The evidence has not shown an inability to perform activities of daily living to include personal hygiene requirements. The evidence generally indicates intact memory, judgment, and insight. In short, despite the Veteran’s severe symptoms, he has not exhibited during the appeal period the type of emotional and cognitive impairment reserved for a total rating. During the appeal period, he has been coherent and in self-control. In particular, the Board notes that, despite his difficulties, the Veteran coached a baseball team, attended school, maintained some social relationships, and worked at several points during the appeal period. See 38 C.F.R. § 4.130. As such, a preponderance of the evidence is against the assignment of a 100 percent rating for mood disorder. See Gilbert and Alemany, both supra. REASONS FOR REMAND The claims of entitlement to a TDIU and to a higher disability rating for TBI are remanded. The Veteran underwent VA TBI examination in July 2020. The RO should obtain an addendum opinion that fully addresses the lay evidence in the claims file, particularly the Veteran’s August 2009 medical note of daily headaches or the Veteran’s report of 11-12 headaches per month. See August 2009 Medical Treatment Records; see also July 2020 Headaches VA Examination. Once the TBI claim has been readjudicated, and the higher rating for mood disorder has been implemented, the TDIU claim should be readjudicated as well. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the claims. Include in the claims file any outstanding VA treatment records. All records/responses received must be associated with the claims file. See 38 C.F.R. § 3.159. 2. Return the case to the VA examiner who conducted the July 2020 VA examination, or to a suitable substitute, for issuance of an addendum report addressing the claim of entitlement to an increased rating for TBI. After reviewing the claims file, the examiner should provide an addendum medical opinion which fully addresses the Veteran’s lay assertions (see e.g., August 2009 Medical Treatment Records). Please explain in detail any opinion provided and the supporting rationale. In rendering the requested opinion, the examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran and any other lay witnesses, the examiner should indicate this in the examination report and provide a rationale for that determination. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Readjudicate the TDIU claim once the increased rating for mood disorder has been implemented and the increased rating claim for TBI has been finally resolved. Then return the case to the Board if in order. C. J. McEntee Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Schmidt 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.