Citation Nr: 21029796 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 13-33 911 DATE: May 17, 2021 ORDER Entitlement to a disability rating 70 percent, and no higher, prior to September 25, 2019 for schizophrenia, residual type, with depressive anxiety, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 25, 2019 is granted. FINDINGS OF FACT 1. Throughout the appeal, the severity, frequency, and duration of the Veteran's schizophrenia symptoms more closely approximate occupational and social impairment with deficiencies in most areas, but did not more closely approximate total occupational and social impairment. 2. It is reasonably shown that the Veteran's service-connected disability precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 70 percent, and no higher, from August 12, 2011 to September 24, 2019, for schizophrenia, residual type, with depressive anxiety, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9201. 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, 4.16, 4.19 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1970 to July 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Commonwealth of Puerto Rico. These matters were remanded by the Board in November 2016 and in July 2019 for further development. The Board finds that there has been substantial compliance and that it may now proceed with a decision. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 50 percent prior to September 25, 2019 for schizophrenia, residual type, with depressive anxiety. VA received the Veteran's claim for an increased disability rating for his service-connected schizophrenia on August 12, 2011 and, in a January 2020 rating decision, the RO granted a 100 percent disability rating, effective September 25, 2019. The Veteran contends that his schizophrenia symptoms warrant a rating in excess of 50 percent prior to September 25, 2019. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that, prior to September 25, 2019, the Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. A December 2011 VA treatment record notes the Veteran reported that he does not trust mental health professionals and has difficulty talking about his symptoms. He did report recent panic attacks, episodes of impulsivity and not sleeping well. He denied current hallucinations but acknowledged previous occurrences. He further acknowledged 2 suicide attempts in the 1970's but denied current suicidal ideation. Mild paranoia was noted. A March 2012 VA treatment record notes the Veteran reported anxiety and isolating himself. August 2012 VA treatment records note the Veteran had symptoms of anger, blaming others, sadness, tiredness, irritability, crying spells. He reported that he spends his time alone and in nature. A June 2013 VA treatment record notes the Veteran reported being anxious about getting a job and being around people. Had been isolated. A June 2014 VA treatment record notes the Veteran had a recent episode of psychosis. A September 2014 VA treatment record notes the Veteran reported depressed mood, passive death with wish, rapid thinking, felt better after isolating himself. A May 2016 VA treatment record notes the Veteran exhibited paranoid ideation, referential thinking, and anxiety. The Veteran was afforded a VA mental disorders examination in December 2016. Symptoms of depressed mood, chronic sleep impairment, flattened affect, and disturbances of motivation and mood were noted. The Veteran reported that he does not socialize, does not go to crowded places, and feels better when he is alone. A May 2017 VA treatment record notes the Veteran reported hearing voices and was unable to discern whether they were his own thoughts. A May 2018 VA treatment record notes the Veteran reported depression, no motivation, or energy. He further reported hearing his recently deceased brother's voice calling him by his nickname. The Veteran was afforded a VA mental disorders examination in September 2019. Symptoms of depressed mood, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and persistent delusions or hallucinations were noted. In a April 2021 psychological evaluation, a private psychiatrist, reviewed the available treatment records, interviewed the Veteran, and rendered a diagnosis of schizophrenia. The doctor provided a very detailed discussion of the available treatment records. The Veteran reported that he was able to complete an Associates degree in Horticulture in 2014 but stated that is took him "many years because [he] was unable to concentrate." He then stated that he could not work for a supervisor as he would be irritable combative and hated taking orders. He detailed becoming increasingly reclusive over the years, not enjoying any social activity, and only wanting to be alone in nature. The doctor then stated that the Veteran's symptoms have lasted for decades with no periods of complete remission in symptomatology, and that they represent "severe and pervasive mental illness." The doctor noted that the Veteran took "far longer than the usual timeframe" to obtain his Associates degree due to his poor focus and concentration, psychotic symptomatology, depressive symptomatology, and a lack of capacity for task completion. The doctor then stated that the courses served as a form of therapy by providing hi structure and keeping him busy, but noted that the Veteran would be unable to use his degree to obtain significant employment due to his aggressive behavior, inability to tolerate authority figures, and extremely poor stress tolerance. The doctor then stated that from at least 1997, his social relationships deteriorated steadily due to his symptoms of paranoia, suspiciousness, persistently disorganized behavior, hyper-religiosity, ideas of reference, perceptual alterations, and suicidal thoughts. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing VA treatment records. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. While the Veteran did experience symptoms contemplated by a 100 percent rating prior to September 25, 2019, namely, auditory hallucinations, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Resolving all reasonable doubt in the Veteran's favor, a disability rating of 70 percent, and no higher, at all times relevant to this appeal is warranted. The benefit-of-the-doubt doctrine is applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to a TDIU prior to September 25, 2019. The Veteran contends that he is entitled to a TDIU prior to September 25, 2019. It is the established policy of the 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. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also, Todd, 27 Vet. App. at 85-86. The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See, Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The evidence of record shows that as of August 12, 2011, he has been service connected for schizophrenia at 70 percent, raised to 100 percent as of September 25, 2019. As such, the Board finds the Veteran meets the threshold requirement for TDIU as of August 12, 2011. The Board notes that the record demonstrates that the Veteran has a GED and an Associates degree in Horticulture. The record further demonstrates that after returning from the service, the Veteran ran his own sporting goods store and, after that closed, was an independent gardener. It was noted in the April 2021 private psychological opinion that the Veteran reported his sporting goods store as his most successful employment because he was his own boss and did not experience "pressure or criticism" from a supervisor. The Veteran described his store as therapy for him as he could simply not open the store when he did not feel well, though he acknowledged that this ultimately led to the store having to close. The record reflects that the Veteran does not handle authority well, has a distrustful and paranoid attitude towards others and tends to isolate himself to deal with stress. Ultimately, the April 2021 private psychiatrist found that since 1997, due to the effects of his schizophrenia symptoms, the Veteran cannot complete tasks on time, adapt to change, interact appropriately with other individuals due to the symptoms of hs schizophrenia, and has been volatile, unpredictable, violent, and incapable of effective communication. It was noted that the Veteran "has had progressively more limited success engaging in prosocial activities, ultimately living on the fringe of society consistent with the presence of severe and pervasive mental illness." In light of the evidence of record, the Board finds that the Veteran is unemployable due to his service-connected disabilities, and that a grant of TDIU is warranted. Geib. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brian P. Keeley 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.