Citation Nr: 21032217 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 17-28 001 DATE: May 26, 2021 ORDER Entitlement to a rating higher than 50 percent disabling for other specified mental disorder is denied. REMANDED Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's other specified mental disorder symptoms do not most closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating higher than 50 percent other specified mental disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.130; Diagnostic Code 9435 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1986 to July 1990. In April 2020, the Board remanded the issue of entitlement to service connection for a thoracic spine disability for further development. In an August 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for degenerative disc disease of the thoracic spine. As the benefit sought on appeal has been granted, the Board no longer has jurisdiction over this appeal. Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Entitlement to a rating higher than 50 percent disabling for other specified mental disorder Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran appeals the denial of a rating higher than 50 percent for his service-connected other specified mental disorder. The Veteran's disability is rated under 38 C.F.R. § 4.130, DC 9435 and is subject to the criteria listed under the General Rating Formula for Mental Disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Under DC 9435, a 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. After review of the VA examinations, outpatient treatment records and lay statements, the Board finds that the schedular criteria for a 70 percent rating under Diagnostic Code 9435 have not been met, or more nearly approximated, during the appeal period. The most probative evidence establishes that while there is some occupational and social impairment, occupational and social impairment with deficiencies in most areas has not been shown or more nearly approximated as contemplated by the schedular criteria. The current claim on appeal was filed in October 2015. Records from the Social Security Administration (SSA) included the Veteran's report of having PTSD and bipolar disorder which had affected him emotionally. He had been withdrawing from friends and family. He attended school but it was difficult for him to go out of the house due to the physical side-effects of radiation treatment for cancer. An SSA examination, upon review of his medical records, found that the Veteran's psychiatric disorder was not severe. It was noted that the Veteran was capable of keeping up with school, that he got along with others, and that he liked leaving the house and being social. A May 2015 VA psychiatrist note indicated that the Veteran was being treated for a mood condition which could present with intermittent exacerbations of mood symptoms that could affect his ability to complete course work for periods of time without treatment. He was noted to be a full-time student studying facilities management. Mental status examinations in 2015 were significant for mildly dysphoric mood and anxious affect with no significant abnormality of orientation, rapport, appearance, speech, or thought content or process. There were no hallucinations, or homicidal ideation. He had one episode of suicidal thoughts with no intent. A statement from the Veteran's former employer indicated that the Veteran stopped working in December 2014 due to "laid off/reduction of force." In August 2015, a VA Vocational Rehabilitation Counselor found that the Veteran's vocational goal of becoming a Facilities Maintenance Manager was feasible and that the Veteran's service-connected disabilities did not preclude essential training and the ability to perform the necessary duties and tasks of employment in this field. During a January 2016 VA examination the Veteran reported that he had been married to his second and current wife for 12 years and that he had six adult stepchildren. He expressed that he and his wife had been getting along better since he had been on medication and in counseling. He stated he and his wife resided together in a house and he indicated that his wife was his social support system. He reported having some friends but that sometimes he just didn't "feel comfortable around folks." He expressed that he liked to write, play music, play videogames and that kept busy around the house. It was noted that he last worked in December 2014 as a pipe fitter but that he had to leave his job due to sinus problems. He indicated, however, that he had generally exhibited good work performance at his various jobs. The Veteran reported depressive symptoms with racing thoughts but no other identifiable hypomanic or manic symptoms. It was noted that when intoxicated the Veteran may exhibit mood lability, which was also deemed a characteristic of other specified mood disorder, and difficult to differentiate what portion of each symptom was attributable to each condition. The Veteran's symptoms were noted to include depressed mood, chronic sleep impairment and neglect of personal appearance and hygiene. The Veteran stated that he did not shower very often. The VA examiner, however, observed that the Veteran's clothing was appropriate to the situation and weather, and that he exhibited acceptable hygiene. The Veteran endorsed symptoms of depression including sleep deficits, irritability, poor concentration, loss of appetite, low energy, and restlessness. He denied recent feelings of hopelessness or worthlessness. He did not report thoughts of suicide or of harming others be said he had been feeling like he did not "want to exist" in the past. He, however, denied feeling that way lately. He did not report nor were there clear indications of obsessions or compulsions, and he said in the past he has had panic attacks but none in the past year. He reported that he experienced racing thoughts "all the time" but he denied trying to get a lot of things done during such episodes. The Veteran's thought processes were linear and his associations were goal-directed. There were no indications of delusions. He reported that he sometimes heard "garbled stuff in the back of [his] head." The examiner stated, however, that it was unclear if such perceptions represented actual hallucinations. It was noted that the Veteran reported concentration deficits that were not severe enough to significantly impact his functioning. Regarding his work functioning, the examiner stated that it appeared that the main reason the Veteran left his last job as a pipefitter was due to sinus rather than mental health issues. The Veteran said he performed relatively well at prior jobs. As such, the examiner estimated that the Veteran's mental health symptoms would only have a mild impact on his work functioning. Thereafter, VA clinic records reflect continued mental health treatment. His mental status examinations were significant for mildly dysphoric and anxious mood and blunted affect. He reported drinking episodes with depressed mood and negative thoughts. He built a music studio in his basement and was planning to collaborate with others. He contacted some old music friends and they were making plans to play in the future. He also visited his father, who was a source of negativity when growing up, and was able to have a civil and pleasant conversation. He also attended church services with his wife, and was hopeful in finding a church where he could get involved in their music program. He had some episodes of increased tension with his spouse and attended couples counseling. In October 2016, the Veteran filed an application for TDIU identifying his PTSD, anxiety and depression as the reason for his unemployability. In the November 2016 VA examination, it was noted that the Veteran continued to abuse alcohol on a regular basis which could complicate any diagnosis. The VA examiner found that it was highly likely that the Veteran's substance use significantly impacted his behaviors, moods, and interpersonal relationships. Consequently, he stated that it would be impossible to determine whether symptoms can be attributable solely to depression or to substance use until such time as the Veteran had a sustained period of abstinence. The Veteran reported that he and his wife were in counseling and that he had a good relationship with his stepchildren. He indicated having some relationship issues with his sibling and that he was trying to make new memories with his stepdad. The Veteran reported that he had not worked since December 2014, he stated that he had some panic issues but that he also had nosebleeds and found out that he had cancer. The Veteran reported symptoms that included depressed and anxiety. He did not feel that he had any difficulties with memory other than occasionally forgetting where he may put things. He described his anxiety as wondering whether he could have been more successful. He was a perfectionist and avoided completing tasks at times. He denied suicidal or homicidal ideations but reported wishing he had never been borne during depressions. He was able to freely recall 3 of 3 words presented after a brief delay, able to recall 5 digits forwards and backwards, able to complete serial 7 subtraction task with no errors to 7 places, able to spell the word "world" forwards and backwards, and able to complete simple 2 digit addition and subtraction. His responses to proverbs were fair. Based on the information received during the examination, the VA examiner found that there was no indication of significant psychological limitations. It was noted that the Veteran appeared to be able to interact with others appropriately, he did not display significant cognitive limitations, and he maintained his activities of daily living without significant impact from psychological importance. Overall, the examiner found that the Veteran appeared to be capable of completing a variety of complex tasks in a variety of environments consistent with his physical abilities. Thereafter, VA clinic records include the Veteran description of non-command auditory hallucinations. His mental status examinations were significantly for mild dysphoria. He described lacking motivation. He attended couples therapy with his wife. The Veteran reported during his December 2020 hearing that he had friends that he grew up with but he expressed that he did not have much of a social life. He reported problems with depression and social anxiety which occur could last for 3 days. He reported that he isolates quite a bit. He expressed that he did not have panic attacks like he used to because he was not around people. The Veteran described times when he has been violent and irritable. He reported having some short-term memory problems which he was unsure if such was due to age or whatever. During the July 2020 VA examination, the Veteran reported that he had been married to his second wife for 16 years and that "they make it work." He reported being close to his stepchildren. He stated that he had friends but he had not been very social lately. He expressed that he socialized with his two childhood friends but he interacted with his other friends on Facebook. It was noted that the Veteran last worked in 2014 and that he was SSI disability and VA compensation. The Veteran reported occasional anger that led to rage. He reported broken sleep and that he slept about four hours without medication. He had no treatment since December 2019 when his psychologist left. His symptoms included severe anxiety, intense mood, irritability, depression, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impaired judgment, and disturbances of motivation and mood. On mental status examination, the Veteran was cooperative and interacted appropriately. His general appearance was normal, his memory appeared intact, and he was fully oriented. His mood was euthymic and his affect was congruent. The examiner found that the Veteran's overall psychiatric impairment resulted in occupational and social impairment with reduced reliability and productivity. The examiner also described that there had been an overall worsening of the Veteran's symptoms. During the course of the appeal, the Veteran's service-connected acquired psychiatric disorder has been manifested by depressive symptoms with racing thoughts, mood lability, social withdrawal, chronic sleep impairment, neglect of personal appearance and hygiene, irritability, poor concentration, loss of appetite, low energy, restlessness, non-command auditory hallucinations, concentration difficulties, anxiety, lack of motivation, short-term memory problems, occasional rage, panic attacks, suicidal thoughts, marital difficulties and impaired judgment. His mental status examinations including findings of dysphoric mood, anxious and blunted affect. The Board observes that it attributes all psychiatric symptoms and impairment to the service-connected acquired psychiatric disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). The Veteran manifests some symptoms consistent with examples for a 70 percent rating. For example, he has reported some feelings of suicidal ideation and/or feelings of not wanting to exist. This symptom is not reported as frequent, or lasting any significant time in duration. The Veteran reports not showering very often which demonstrates some neglect of personal appearance and hygiene. However, the Veteran has also been described by one examiner as demonstrating acceptable hygiene while another examiner indicated that the Veteran maintained his activities of daily living without significant impact from his psychological problems. Otherwise, the clinic records and examination reports have not described any significant neglect of personal appearance and hygiene. The Veteran also demonstrated difficulty in adapting to stressful circumstances and some inability to establish and maintain effective relationships with panic attacks and social anxiety. The Veteran described episodes of depression and anxiety which could occur 2 to 3 times a month and last for up to 3 days. The impact of this aspect of disability was described by a 2015 examiner as a mood condition causing intermittent exacerbations of mood symptoms that could affect his ability to complete course work for periods of time without treatment. The Veteran himself described engaging in activities such as contacting old musician friends and attempting to engage in group musical activities. He attended church services with his spouse, maintained relationships with siblings and socialized with two childhood friends. He has had marital difficulties which has resulted in couples counseling, but has been married for 16 years and reports that that "they make it work." The Veteran has also manifested some symptoms listed as examples in the criteria for a 100 percent rating. He has described non-command auditory hallucinations which happened "sometimes" with one VA examiner commenting that it was unclear whether the Veteran's perceptions represented actual hallucinations. The Veteran reports that he has been violent with rage episodes. However, the Veteran has not described the frequency, duration or severity of these episodes other than occasional and his clinic records are silent for this aspect of disability. The Veteran reports short-term memory loss. A VA examiner in 2016 described the Veteran's memory loss as not severe enough to significantly impact his functioning. Mental status examination showed that the Veteran was able to freely recall 3 of 3 words presented after a brief delay, able to recall 5 digits forwards and backwards, able to complete serial 7 subtraction task with no errors to 7 places, able to spell the word "world" forwards and backwards, and able to complete simple 2 digit addition and subtraction. His responses to proverbs were fair. Another examiner described "mild" memory loss. The Veteran has not described memory loss to the extent of not recalling the names of close relatives, own occupation, or own name. In the context of these examples, an SSA examination found that the Veteran's psychiatric disorder was not severe noting that the Veteran at that time was capable of keeping up with school, that he got along with others, and that he liked leaving the house and being social. A May 2015 examiner noted that mood condition could present with intermittent exacerbations of mood symptoms that could affect his ability to complete course work for periods of time without treatment. In August 2015, a VA Vocational Rehabilitation Counselor found that the Veteran's vocational goal of becoming a Facilities Maintenance Manager was feasible and that the Veteran's service-connected disabilities did not preclude essential training and the ability to perform the necessary duties and tasks of employment in this field. A January 2016 VA examiner estimated that the Veteran's mental health symptoms would only have a mild impact on his work functioning. A November 2016 VA examiner found that the Veteran appeared to be capable of completing a variety of complex tasks in a variety of environments consistent with his physical abilities. The 2020 VA examiner, noting a worsening of symptoms, still found that the Veteran's overall psychiatric impairment resulted in occupational and social impairment with reduced reliability and productivity. Based on the totality of the lay and medical evidence, the Board cannot conclude, however, that the Veteran's disability causes occupational and social impairment with deficiencies in most areas. The Veteran's mental status examinations reflect no significant impairment of speech, orientation, and thought process or content other than non-command auditory hallucinations. His judgment and insight were adequate. There was no evidence of delusions or psychomotor agitation. There is no evidence he has been a danger to himself or others. His panic attacks have been noted to occur weekly or less often, and he reported that he does not drive due to distraction but there is no report of near- continuous panic or depression affecting the ability to function independently. To the extent that the Veteran reported during his hearing that there have been times that he has been irritable and "can be violent," he also reported that during these times he removes himself from the situation and goes to the basement to get away from his wife to avoid conflict. The expert opinion in this case describes the overall occupational and social as not worse than occupational and social impairment with reduced reliability and productivity. In sum, the Veteran's other specified mental disorder symptoms are more characteristic of a disability picture that is contemplated by no more than a 50 percent rating. The Board finds that the Veteran has been competent and credible when reporting his symptoms during this time. The Board notes that the Veteran has other specified mental disorder symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss, impaired judgment, disturbances of motivation and mood and chronic sleep impairment. The medical and lay evidence, however, establish that there is at most occupational and social impairment with reduced reliability and productivity. The Board has considered the evidence presented and finds that the manifestations, even when accepted as credible, do not equate in frequency, duration, or severity to occupational and social impairment with deficiencies in most areas so as to warrant a rating higher than 50 percent. Accordingly, a rating higher than 50 percent for other specified mental disorder is denied. There is no doubt of material fact to be resolved in his favor. REASONS FOR REMAND The Veteran appeals the denial of TDIU. The Veteran claims that his service-connected disabilities render him unable to obtain and retain employment. During his December 2020 hearing, the Veteran reported that he worked in construction but his mental health issues interfered with his occupation. He reported that his social anxiety is high and that he has panic attacks when around people which interferes with his ability to work. He also reported that his back went out while lifting heavy equipment while working which prevented him from working for a year and a half. The Veteran is service connected for other specified mental disorder rated as 50 percent, degenerative disc disease of the thoracic spine rated as 20 percent and pseudofolliculitis barbae rated as 0 percent. While the record contains opinions regarding the impact that the Veteran's individual service connected disabilities have on his ability to obtain and maintain employment, an opinion has not been obtained addressing the cumulative impact that his service connected disabilities have on his ability to obtain and maintain employment. On remand, such an opinion should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. (continued on the next page) 2. Obtain a VA opinion to determine the cumulative impact the Veteran's service-connected disabilities have on his ability to obtain or retain employment. All findings should be reported in detail and all functional impairment caused by the service-connected disorders should be detailed. A complete rationale for all opinions should be provided. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.