Citation Nr: 21040134 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-09 295 DATE: July 2, 2021 ORDER Entitlement to service connection for claustrophobia and fear of water is denied. Entitlement to an initial 70 percent disability rating, but no higher, for service-connected persistent depressive disorder with anxious distress is granted for the period prior to September 8, 2017. Entitlement to a rating in excess of 70 percent for persistent depressive disorder with anxious distress is denied on and after September 8, 2017. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted from October 23, 2020. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has separately diagnosed disabilities of claustrophobia and fear of water that began during or are otherwise related to the Veteran's period of active service. 2. For the entire period on appeal, the Veteran's service-connected persistent depressive disorder with anxious distress was manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. From October 23, 2020, the Veteran's service-connected depressive disorder precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for claustrophobia and fear of water have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for an increased rating of 70 percent, but no higher, for persistent depressive disorder with anxious distress have been met prior to September 8, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 3. The criteria for a rating in excess of 70 percent for persistent depressive disorder with anxious distress have not been met on and after September 8, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 4. From October 23, 2020, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran; K.S., a psychologist; and C.N., a psychiatric clinical pharmacist, testified before the undersigned Veterans Law Judge (VLJ) during a February 2021 videoconference hearing. A transcript of that hearing is associated with the claims file. 1. Entitlement to service connection for claustrophobia and fear of water The Veteran asserts that he has claustrophobia and a fear of water related to his period of active service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). The Veteran's service treatment records include a September 1990 health record wherein the Veteran specifically denied claustrophobia. In August 1992, the Veteran underwent psychiatric treatment but was found not to have a psychiatric disorder. Rather, there was "evidence of a personality disorder" but he was found fit for duty. In September 1992, the Veteran indicated that he was anxious about going onto the boat and he was recommended for administrative separation. His September 1992 separation examination indicates he had a normal psychiatric clinical evaluation and he denied depression, excessive worry, and nervous trouble of any sort on the accompanying report of medical history. During the October 2015 VA examination, the Veteran indicated that he did not realize that he was afraid of water until he got into service, as he had not previously been exposed to large bodies of water. It was also not until he was on a ship that he realized he was claustrophobic. The examiner noted that the Veteran had specific phobias that result in very minor functional impairments. The Veteran stated that he is unable to get in water, even bathtubs, without feeling like his chest is collapsing. He denied frequent situations where he was required to go in tight quarters but mentioned losing his job as an electrician when he was unable to complete a job in a small space. The examiner indicated that while the Veteran self-reported that his specific phobias initially presented in service, the clinician was unable to find evidence in the service medical records to support such. The examiner opined that the Veteran's diagnoses of aquaphobia and claustrophobia were less likely than not incurred in or caused by the Veteran's period of active service and are not the result of an in-service diagnosis of a personality disorder, as phobias are diagnosed and treated independently of personality disorders. During the February 2021 hearing, C.N. and K.S. stated that the Veteran's claustrophobia and fear of water should be looked at in terms of the existing mental health issues and that he did not necessarily have a separate diagnosis. Specifically, the phobias mostly presented in nightmares related to his period of active service and his currently diagnosed depression. Notably, K.S. indicated that she has not separately diagnosed the Veteran with claustrophobia but felt that he would most likely have symptoms of the disorder listed in the Diagnostic and Statistical Manual of Mental Disorders. However, K.S. stated that the fact that the Veteran's phobias presented during nightmares is consistent with traumas experienced during service that resulted in posttraumatic stress disorder. The Veteran's post-service treatment records are absent of complaints or treatment for claustrophobia or a fear of water. After a review of the above, the Board finds that the weight of the evidence is against finding the Veteran has a separately diagnosed disability manifested by claustrophobia or a fear of water that is etiologically related to the Veteran's period of active service. The Board finds the October 2015 VA opinion especially probative in this respect. After a review of the claims file and an examination of the Veteran, the examiner provided a negative nexus opinion with a thorough and complete rationale. There is no competent opinion to the contrary. Indeed, the Board notes that while K.S. and C.N. acknowledged the Veteran had symptoms of both claustrophobia and a fear of water, neither had diagnosed a condition separate from his service-connected depressive disorder. Rather, such phobias were considered manifestations of traumatic experiences from service. The Veteran, through his representative, asked that they be considered as symptoms of the Veteran's depressive disorder for purposes of evaluating the Veteran's overall functioning. Accordingly, the Board finds that a preponderance of the evidence weighs against finding service connection for claustrophobia and a fear of water. The claim is denied. 2. Entitlement to an initial rating in excess of 50 percent prior to September 8, 2017 and in excess of 70 percent thereafter for service-connected persistent depressive disorder with anxious distress A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to increased ratings for his service-connected depressive disorder. For the reasons stated below, the Board finds that for the entire period on appeal, the Veteran is entitled to a disability rating of 70 percent, but no higher, for his service-connected persistent depressive disorder with anxious distress. The Veteran's service-connected depressive disorder is rated under Diagnostic Code 9433, which utilizes the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating 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; and difficulty in establishing and maintaining effective work and social relationships. 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); and the inability to establish and maintain effective relationships. The maximum 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, Diagnostic Code 9433. Symptoms listed in the General Rating Formula 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. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code; instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Id. Further, when evaluating a mental disorder, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission, and must also 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. 38 C.F.R. § 4.126(a). The Veteran was afforded a VA examination in October 2015. At that time, the Veteran reported a depressed mood, diminished interest or pleasure in activities, feelings of worthlessness or low self-esteem, and social isolation or withdrawal. The examiner found the Veteran's level of occupational and social impairment consistent with reduced reliability and productivity. He reported that he often prefers to be alone because people make fun of him for being quiet and shy. The Veteran further stated that he has no friends and that he shares a home with a roommate, but they have no contact. He said that he would like to have relationships, but he has been hurt a lot throughout his life and has difficulty with trust. The Veteran reported symptoms of social anxiety and depression, with difficulty maintaining employment. He stated that his attendance and work ethic are good but working with people is difficult for him and he preferred working alone. The Veteran had a lack of significant interpersonal connection and relationships. He described a lot of job turnover related to his psychological issues. He denied symptoms of mania or hypomania, overt psychotic symptoms, generalized anxiety, obsessive or ritualistic behavior, current suicidal or homicidal ideation, intent, or plan, or any history of inpatient psychiatric hospitalizations. The examiner evaluated him to be a low risk of harm to himself or others. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner described the Veteran as dressed appropriately with adequate grooming, friendly, polite, respectful, anxious with a congruent affect, speech within normal limits, alert and fully oriented, linear thought processes, logical, and goal directed. He was attentive and focused and able to follow directions. His judgment and impulse control were intact, and he denied current suicidal or homicidal ideation. He was found able to manage his financial affairs. The evidence of record also includes VA treatment records dated in October 2015 wherein the Veteran denied current suicidal or homicidal ideation, intent, or plan. The psychologist found no indication of imminent or acute threat of harm to self or others. In April 2016, the Veteran called the suicide hotline, noting that he was dealing with social anxiety, memory and concentration problems, and sleep issues. He stated that he was socially awkward, had difficulty keeping a job, and that he would wake up at night and not know where or who he was. He reported several attempts to take his life. In September 2017, the Veteran indicated that he had a new job working security and that it was going well. He denied having any friends or family to spend time with, stating that his only companion was his dog. He endorsed suicidal ideation without plan or intent, stating that his thoughts were mostly passive. He was found to be a low threat of imminent risk. He was described as appropriately dressed and groomed, his speech was within normal limits, and he was fully oriented. His thought processes were logical though very focused on the past and being judged by others. He denied feeling psychotic, but his mood was anxious with a congruent, broad-ranged affect. In March 2018, the Veteran reported worsening depression symptoms since beginning a medication in January 2018. He had increased ruminative thoughts, lower energy, and less interest in doing things. He had anxious and depressed thoughts and significant negative self-beliefs. He continued to have chronic thoughts of death but denied any suicidal intent or plan. He was described as alert and fully oriented with good grooming and hygiene. He denied hallucinations or delusions and there was no evidence of psychosis. The Veteran denied suicidal and homicidal ideation and his memory was intact. In December 2019, the Veteran reported continued low energy and decreased focus. He was having near-constant traumatic memories. The Veteran denied suicidal and homicidal ideation and felt that his symptoms were at baseline. On assessment, he was found intermittently restless and fidgety with intermittent eye contact, a blunted affect, and a drained mood. He was alert and fully oriented and his thoughts were organized and linear. The Veteran was described as pleasant and well-groomed and was not found to be a safety risk. In May 2020, the Veteran was described as alert and fully oriented with a linear and logical thought process and okay mood. His affect was appropriate, and his attention and concentration had deficits. The Veteran denied hallucinations, perceptions, delusions, and illusions. His memory was grossly intact, and he denied suicidal or violent ideation. His insight was limited and his judgment was fair. The clinician noted that the Veteran was not a substantially elevated safety risk. In July 2020, the Veteran reported feeling paranoid. In October 2020, the Veteran reported a recent suicide attempt or gesture by cutting his left wrist. He noted that he was in his normal state of health until he began taking a new medication for sleep. He said the medication caused significant sleep paralysis which led to him feeling extremely anxious and fearful of his life. He indicated that since that incident, he had increased anxiety with worsening racing thoughts and thoughts of self-harm. The self-inflicted wounds were found to be superficial and he was referred to psychiatry. In December 2020, the Veteran was noted to be alert and fully oriented. He denied hallucinations, perceptions, delusions, and illusions. His memory was grossly intact, and he denied suicidal or violent ideation. During the February 2021 hearing, C.N. testified that the Veteran's employment and relationships since the military had been very minimal and difficult to maintain. K.S. noted that he was largely unresponsive to therapy designed to help him gain employment, develop relationships with others, and gain social support. Both C.N. and K.S. opined that the Veteran was totally occupationally and socially impaired related to his anxiety and depression. After a review of the above, the Board finds that throughout the period on appeal, the Veteran's persistent depressive disorder was manifested by symptoms associated with a 70 percent disability rating (occupational and social impairment with deficiencies in most areas, impaired impulse control, and difficulty in adapting to stressful circumstances). Specifically, the Veteran is shown to have suicidal thoughts throughout the entire period on appeal and an inability to establish and maintain effective relationships. The evidence also shows that the Veteran's service-connected depressive disorder has interfered with his ability to maintain consistent employment as he has difficulty working with others and difficulty adapting to stressful circumstances. Therefore, entitlement to a rating of 70 percent for depressive disorder for the period prior to September 8, 2017, is granted. However, at no time during the appeal period are the Veteran's symptoms of depressive disorder found to be more nearly approximated by total occupational and social impairment warranting a 100 percent disability rating. In this respect, while the Veteran reported difficulty in maintaining employment, he was shown to be employed by Advantage Security for over 5 years. Further, while he had intermittent suicidal ideation and even a suicide attempt in 2020, the Veteran was regularly evaluated for safety and found not to be an increased risk for harm to himself or others. The Veteran even reported that he could "keep himself safe" after the suicide attempt and denied any homicidal intent throughout the appeal period. He was further indicated to maintain his hygiene and was not found to endorse hallucinations or delusions at any point during the appeal period. Indeed, while there was one incident of paranoia recorded, the Veteran clarified that he knew no one was out to get him, but rather he described the feeling as being "on edge." Ultimately, the Board finds that throughout the period on appeal the severity, frequency, and duration of the Veteran's symptoms are more closely approximated by 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. In summary, the preponderance of the evidence indicates that the severity, frequency, and duration of the Veteran's depressive disorder symptoms resulted in the level of impairment consistent with a 70 percent rating, but no higher, for the entire period on appeal. Therefore, entitlement to an increased initial disability rating of 70 percent for persistent depressive disorder with anxious distress is granted prior to September 8, 2017. On and after that date, entitlement to a rating in excess of 70 percent is denied. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). In determining whether a Veteran is entitled to a total disability rating based on individual unemployability, neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). The Veteran is currently service connected for persistent depressive disorder with anxious distress, rated 70 percent disabling from July 29, 2014, pursuant to this decision. Accordingly, the requirements for a schedular TDIU have been satisfied. 38 C.F.R. § 4.16(a). The question before the Board is whether the Veteran's service-connected depressive disorder precludes him from obtaining and maintaining any form of gainful employment. After a review of the evidence, the Board finds that it does. During the October 2015 VA examination, the Veteran reported that he completed high school with good grades and earned an Associate Degree in electronic engineering with a computer technician training certificate. He had been working as a security guard for the previous 4 months and was a hospital courier for a year. He had worked a variety of other jobs, including laying cable lines and being a fire alarm inspector. The Veteran underwent counseling for vocational rehabilitation in November 2017. At that time, the Veteran noted that he held approximately 53 or more jobs since 1990. He stated that he was currently working for Advantage Security as a security guard but had been moved 13 times over the span of two and a half years related to his difficulty with the job. The counselor found that the vocational objective was not reasonably feasible. In April 2019, the Veteran reported that he continued to work for Advantage Security, but that he had been fired from 5 different locations within that company. On the Veteran's November 2020 Application for Increased Compensation based on Unemployability, he noted that he last worked full time on October 23, 2020 as a security guard. He reported that he lost 4 weeks of work from illness. He noted he was unable to work related to his PTSD, anxiety, and depression. The Veteran indicated that he completed 2 years of college and obtained an Associate Degree in electrical engineering in 1995. The Veteran reported that he terminated his employment as a security guard after an anxiety attack resulted in a suicide attempt at work. A Request for Employment Information completed by Advantage Security in November 2020 reflects that he began working there in July 2015 and worked through October 23, 2020. The Veteran worked as a security guard and did not lose any time in the previous 12 months related to his disability. He worked full time, 8 hours daily and 40 hours weekly. Advantage Security denied making any concessions to the employee by reason of disability. During the February 2021 hearing, C.N. testified that the Veteran's employment and relationships since the military have been very minimal. Indeed, the Veteran took a job in security with the hope that he was at risk of being harmed and they noted the recent psychiatric hospitalization for suicidal ideation. K.S. testified that the Veteran was largely unresponsive to therapy aimed at helping him obtain employment. The Veteran indicated that he is unable to maintain employment because people think he is homicidal even though he is not. Both K.S. and C.N. indicated that they felt he was totally occupationally impaired related to his anxiety and depression. The Veteran testified that he last worked in October 2020. Upon review of the above, the Board finds that a preponderance of the evidence indicates that the Veteran's service-connected persistent depressive disorder has precluded the Veteran from maintaining substantially gainful employment since October 23, 2020, the date he last worked full-time. The Board has considered the period prior to October 23, 2020, as the evidence reflects that the Veteran held over 50 jobs since service discharge, but finds the evidence weighs against awarding TDIU during that time. Notably, the Veteran does not indicate that he worked in a protected environment at any time or that he held only marginal employment. Indeed, Advantage Security, where he last worked full-time from 2015 to 2020, specifically noted that they made no concessions related to his disabilities and stated his income, which was above the poverty threshold established by the U.S. Department of Commerce, Bureau of the Census. See 38 C.F.R. § 4.16(a). Accordingly, in affording the Veteran the benefit of any reasonable doubt, a TDIU is granted from October 23, 2020. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.