Citation Nr: 21024817 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-10 874A DATE: April 26, 2021 ORDER A 70 percent rating from January 12, 2012 to February 13, 2020 for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and alcohol use disorder is granted. A total disability rating based on individual unemployability (TDIU) due to service-connected disorders from January 12, 2012 to September 20, 2018 is denied. FINDINGS OF FACT 1. With resolution of the doubt in his favor, from January 12, 2012 to February 13, 2020, the Veteran’s psychiatric disorder manifested as occupational and social impairment with deficiencies in most areas, such as family relations, judgment, thinking and mood due to suicidal ideation, obsessional rituals, near-continuous depression and impaired impulse control. 2. From January 12, 2012 to September 20, 2018, the Veteran’s service-connected disorders did not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria to establish a 70 percent rating from January 12, 2012 to February 13, 2020 for a psychiatric disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7; 4.130, Diagnostic Code (DC) 9411. 2. The criteria to establish a TDIU from January 12, 2012 to September 20, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1969 to March 1972, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of the Atlanta, Georgia Regional Office (RO). In December 2019, the Board granted an increased 50 percent rating but denied an increased 70 percent rating for the entirety of the appellate period for the Veteran’s psychiatric disorder. The Veteran appealed the Board decision to the U.S. Court of Appeals for Veterans’ Claims (Court). In an October 2020 Joint Motion for Partial Remand (JMPR), the Court vacated the Board decision and remanded the Veteran’s appeal to the Board. The Court found that the Board did not address relevant evidence pertaining to suicidal ideation, homicidal ideation, hallucinations and abusive behavior towards others. The Board has considered this evidence and will grant an increased 70 percent rating from January 12, 2012 to February 13, 2020. The Veteran is in receipt of special monthly compensation from March 17, 2017 under 38 U.S.C. § 1114(k) and 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. The Veteran is also in receipt of a TDIU from September 21, 2018. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155. When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Psychiatric disorder PTSD is evaluated under the General Rating Formula for Mental Disorders. 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. 38 C.F.R. § 4.130, DC 9411. A 70 percent 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 a work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if 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; memory loss for names of close relatives, own occupation, or own name. Id. The U.S. Court of Appeals for the Federal Circuit has noted 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.” Vasquez-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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, if the evidence shows that a Veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran’s psychiatric disorder is rated 10 percent disabling from September 6, 1973 to March 31, 1984; noncompensable from April 1, 1984 to March 17, 1992; 10 percent disabling from March 18, 1992 to January 21, 2008; 30 percent disabling from January 22, 2008 to January 11, 2012; 50 percent disabling from January 12, 2012 to February 13, 2020 and 70 percent disabling from February 14, 2020 and continuing thereafter. The appellate period is from January 12, 2012, the receipt date of the Veteran’s increased rating claim. In a January 2012 statement, the Veteran reported experiencing irritability, domestic trouble, depression, anxiety, feeling overwhelmed and that he “felt like I wanted to end it all.” The Veteran also reported experiencing trouble with anger which led his family to become afraid of the Veteran. The Veteran indicated having undergone substance abuse treatment. The presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas and must be considered with other evidence. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). In a January 2012 VA treatment record, the Veteran reported experiencing a good mood and that his spouse mentioned that he was easier to get along with. In a March 2012 statement, the Veteran’s spouse reported having observed the Veteran’s explosive temper, alcohol consumption and trouble with sleeping. She reported that the Veteran avoided crowds and socially isolates. She also reported an instance when the Veteran told her daughter that she could get shot if she wasn’t careful upon entering his home. In an April 2012 VA treatment record, the Veteran reported experiencing anger, irritability, nervousness, startled response, social isolation, arguments with his spouse, hypervigilance and trouble with sleep. The Veteran then-worked in maintenance at a senior citizen center, enjoyed spending time with his mother, gardening and fishing. The Veteran was previously divorced and married to his current spouse for eight years. The relationship was not always good and there was a history of domestic trouble. The Veteran indicated having been verbally abusive towards his family but not physically abusive. The Veteran denied experiencing suicidal ideation but indicated having “thought about it last year.” He denied experiencing homicidal ideation. The Veteran was observed as appropriately dressed, normal attention and mild memory impairment. The Veteran was oriented to all spheres and displayed normal behavior, mood, affect, speech, thought process and judgment. In the November 2012 VA examination, the Veteran was diagnosed with PTSD and polysubstance dependence. The examiner indicated that the Veteran had more than one diagnosed psychiatric disorder and that it was possible to differentiate which symptoms were attributable to each diagnosis. The Veteran reported experiencing trouble with sleeping, crowd avoidance, easily startled and nervousness. The Veteran described relationships with his mother, siblings, spouse and children as good. He was then-currently employed as an apartment maintenance supervisor for 17 years. The Veteran denied having been admitted to a psychiatric hospital and denied experiencing hallucinations, suicidal or homicidal ideation. The examiner indicated that the Veteran’s symptom was anxiety and had no other symptoms attributable to PTSD. The examiner noted significant substance abuse but that the Veteran’s work history was fairly stable. It was noted that the Veteran’s PTSD was in remission. The examiner summarized the Veteran’s total impairment as 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. In a November 2014 VA treatment record, the Veteran reported experiencing anger, paranoia and anxiety. The Veteran denied experiencing suicidal ideation, homicidal ideation, hopelessness, or despair. He was observed as neatly dressed, anxious manner, oriented to all spheres, normal speech, memory and judgment. In a March 2016 VA treatment record, the Veteran reported experiencing trouble sleeping, hypervigilance, intrusive memories, lack of motivation and anxiety. The Veteran denied experiencing depression, hopelessness, suicidal ideation and homicidal ideation. A May 2016 VA treatment record reflects the Veteran’s report of experiencing a normal mood and having denied experiencing suicidal and homicidal ideation. In an October 2016 VA treatment record, it was noted that the Veteran’s symptoms were intrusive memories of past trauma, nightmares, insomnia, hypervigilance, exaggerated startled response, irritability and social isolation. In a December 2016 statement, the Veteran’s daughter reported having observed the Veteran experience depression, alcoholism and drug abuse. She indicated that the Veteran was easy-going but can become explosive and rude. During a September 2016 family reunion, the Veteran yelled and cursed at another family member. She also reported having observed the Veteran experience trouble with sleeping and checking doors and windows. In his December 2016 informal hearing, the Veteran reported experiencing trouble with anger, sleeping, argumentative with family, panic attacks and irritability. The Veteran reported experiencing memory impairment due to an instance of forgetting to place his clothes from the washer into the dryer and hallucinations described as under the impression that the Veteran was still in Vietnam. The Veteran indicated that he did not need assistance with personal care. In the December 2016 VA examination, the Veteran was diagnosed with PTSD and alcohol use disorder and the examiner indicated that it was not possible to differentiate between symptoms because chronic alcohol abuse can result in an overlap of symptoms. The Veteran reported having five siblings and that he was close with one of them. He described his second marriage of 16 years as a “roller coaster.” The Veteran gets along with his five children and lived with his wife and brother. The Veteran spent time at church and with friends. The Veteran indicated he retired in May 2015 due to stress, feeling overwhelmed and trouble with memory; however, the Veteran indicated that he was then employed as a maintenance supervisor. The Veteran’s symptoms were anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events. The Veteran reported experiencing other symptoms such as short term memory loss, trouble with sleeping, checking windows, argumentative, feeling on edge and a short temper. The examiner observed the Veteran with normal hygiene, oriented to all spheres, no psychomotor abnormalities, no thought disturbance, normal mood and speech. The Veteran denied experiencing suicidal and homicidal ideation. The Veteran’s total impairment was summarized as 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. In a January 2017 statement, the Veteran’s brother reported having observed the Veteran lash out at family members due to his impatience and short temper. In a January 2017 statement, the Veteran’s spouse reported that the Veteran was emotionally and verbally abusive. She indicated that the Veteran was not a good communicator, argumentative, experienced trouble sleeping and rarely participated in activities together. In a January 2020 VA treatment record, the Veteran reported experiencing domestic trouble due to living with his wife, mother-in-law and step-daughter. The Veteran denied experiencing suicidal or homicidal ideation. He was observed as having a normal appearance, speech, mood, thought process and thought content. In the February 2020 VA examination, the Veteran was diagnosed with PTSD and alcohol use disorder and the examiner indicated that it was possible to differentiate which symptoms were attributable to each diagnosis. The Veteran reported having lived with his spouse of fifteen years and that it was a rocky relationship. The Veteran enjoyed socializing at church and gardening; however, the Veteran avoided crowds and other social gatherings. The Veteran stopped working in maintenance in 2019 due to trouble with concentration and bilateral knee trouble. Then Veteran was not then-currently employed. He denied experiencing suicidal and homicidal ideation. The Veteran’s symptoms were anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbances 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. The Veteran was observed as having dressed casually, anxious affect, oriented to all spheres, normal motor functioning, attention, concentration, thought process and thought content. The examiner summarized the Veteran’s total impairment as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In a March 2020 VA treatment record, the Veteran was observed as appropriately dressed, oriented to all spheres, friendly, cooperative, normal speech, mood and affect. The Board will grant an increased 70 percent rating from January 12, 2012 to February 13, 2020 for the Veteran’s psychiatric disorder under DC 9411 based on the benefit-of-the-doubt doctrine. The Veteran experienced several instances of suicidal ideation and obsessional rituals of checking windows and doors which resulted in chronic sleep impairment. The Veteran also experienced near-continuous depression due to his social isolation and having to avoid crowds. The evidence reflects impaired impulse control as evidenced by the Veteran lashing out verbally towards his family. Although two VA examiners summarized the Veteran’s total impairment as either a 10 or 30 percent rating, their assessments are evidence, but not dispositive to the Board’s inquiry. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an increased 70 percent rating is warranted and the claim is granted. A preponderance of the evidence is against a finding of an increased 100 percent rating for the entirety of the rating period on appeal. Although the Veteran experienced domestic trouble, the evidence does not reflect a gross impairment in thought process or communication. The Veteran reported experiencing a hallucination of having been back in Vietnam; however, it appeared that the Veteran was dreaming rather than hallucinating. The evidence does not reflect a persistent danger of the Veteran hurting himself or others because although the Veteran has several noted instances of suicidal ideation, the Veteran has consistently reported never having acted on it and the Veteran reported never having placed his hands on his family members. The Veteran has also been consistently observed as having a normal hygiene and the Veteran has reported experiencing no trouble as to personal care. Therefore, an increased 100 percent is not warranted and the claim is denied. TDIU In a July 2020 rating decision, the RO granted TDIU effective September 21, 2018. In his April 2021 brief, the Veteran through his representative, indicated that the issue of a TDIU was moot. However, the Veteran’s claim for a TDIU, raised under Rice, did not encompass the entire appellate period for the increased rating claim as to the Veteran’s psychiatric disorder, and therefore, the grant of TDIU was a partial grant and the remaining period – January 12, 2012 to September 20, 2018 – for a TDIU remained in appellate status. Harper v. Wilkie, 30 Vet. App. 356 (2018). TDIU may be assigned, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Relevant to the period on appeal, the Veteran’s service-connected disorders include a psychiatric disorder rated 70 percent disabling from January 12, 2012 and continuing thereafter; tinea versicolor rated 30 percent disabling from January 22, 2008 and continuing thereafter; diabetes mellitus type II rated 20 percent from March 17, 2017 and continuing thereafter; tinnitus rated 10 percent disabling from March 17, 2017 and continuing thereafter; and right lower extremity peripheral neuropathy rated 10 percent disabling from March 17, 2017 and continuing thereafter. The Veteran has met the schedular requirement under § 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. Thus, the central question is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In an April 2012 VA treatment record, the Veteran reported having then-worked full time in maintenance at a senior citizen center. In a November 2015 statement, the Veteran reported that he was not employed because he experienced trouble focusing on the job. In the December 2016 VA examination, the Veteran reported having retired from his seven year position as a maintenance supervisor; however, the Veteran indicated that he was currently employed part-time as a maintenance supervisor. (Continued on next page) A preponderance of the evidence is against a finding that the Veteran’s service-connected disorders precluded him from securing or following a substantially gainful occupation from January 12, 2012 to September 20, 2018. The evidence does not reflect that the Veteran was incapable of performing the physical and mental acts required to be employed. The Veteran indicated having been employed full time until approximately 2015 when he retired and he continued to work. Therefore, a TDIU is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.