Citation Nr: 21041016 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-46 221 DATE: July 7, 2021 ORDER A 70 percent disability rating for service-connected dysthymia and memory loss with cannabis dependence (hereinafter "acquired psychiatric disorder") is granted, subject to the rules and regulations governing the award of monetary benefits. The appeal seeking entitlement to a compensable rating prior to July 5, 2018, and a rating in excess of 10 percent from July 5, 2018, for bilateral hearing loss is dismissed. A total disability rating based on individual unemployability (TDIU) is granted, subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder has been productive of no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. At the January 2021 Board hearing, the Veteran' stated on the record that he wanted to withdraw the appeal with respect to the claim for an increased rating for bilateral hearing loss. 3. The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for the Veteran's acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9433. 2. The criteria for withdrawal of the issue of entitlement to an increased rating for bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. § 3.102, 3.159, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1964 to December 1967. In January 2021, a Board hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At the hearing, the Veteran and his representative requested that the record be held open for 60 days for the submission of additional evidence. In March 2021, the Veteran's representative requested that the evidentiary record be held open for an additional 60 days. This extension request was granted and in May 2021, the Veteran's additional medical evidence was received. This evidence is considered herein. 1. Entitlement to an increased disability rating for service-connected dysthymic disorder. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran's acquired psychiatric disorder, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 50 percent is warranted for a mental disorder that results in 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 rating of 70 percent is warranted for a mental disorder that results in 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 inability to establish and maintain effective relationships. A 100 percent rating is assigned when the condition results in 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. 38 C.F.R. § 4.130, DC 9411. Importantly, evaluations under § 4.130 are 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). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. 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 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. 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 veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is currently assigned a 50 percent rating for his service-connected acquired psychiatric disorder. As will be discussed more fully below, the Board finds that the evidence is at least in equipoise as to whether a higher 70 percent rating is warranted for the entirety of the appeal period. The Veteran underwent a VA examination in September 2011 to assess his psychiatric disorder. He reported that he retired in 1996 primarily due to his medical problems. The examiner diagnosed the Veteran with mood disorder not otherwise specified and documented symptoms consisting of nightmares, hypervigilance, depression, anxiety, panic attacks up to three times a week, and sleep problems. In September 2011, the Veteran's licensed clinical social worker (LCSW) provided a treatment summary indicating that the Veteran had symptoms consisting of depression, claustrophobia, feelings of terror, nightmares, debilitating anxiety. The LCSW also stated that these symptoms made it impossible for the Veteran to work a regular job. The Veteran's Vet Center treatment records from 2012 to 2013 document continuous symptoms of anger, irritability, isolation, depression, anxiety, and hypervigilance. In June 2013, the Veteran underwent VA examination to evaluate his psychiatric disorder. The examiner documented symptoms consisting of sadness, anhedonia, hopelessness, sleep disturbance, panic attacks that occurred weekly, mild memory loss, and disturbance of motivation and mood. The examiner indicated that such symptoms would result in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks. In June 2014, another VA examination was conducted to evaluate the Veteran's psychiatric disorder. The Veteran reported that he and his wife had been together for over 25 years and this was the best relationship of his life. He also reported that his wife helped him get out of the house and he was able to take the dog on walks. The examiner documented symptoms consisting of depression and anxiety and indicated that such symptoms were not severe enough to interfere with occupational and social functioning or require continuous medication. In July 2018, the Veteran most recently underwent a VA examination to evaluate his psychiatric disorder. The Veteran reported that he had been married for 30 years, had friends in northern California, did wood carving, and volunteered for Veteran's Court/VFW. The examiner documented symptoms consisting of suicidal ideations with vague plan, depression, anxiety, anger, panic attacks more than once a week, sleep disturbance, memory problems, difficulty understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a worklike setting. The examiner indicated that such symptoms would result in occupational and social impairment with reduced reliability and productivity. In October 2018, the Veteran's private licensed professional counselor (LPC) indicated that the Veteran's depression greatly impacted his ability to engage in a social setting within the community. The LPC reported that the Veteran had symptoms of agitation, exaggerated anger, exacerbations of anxiety, depression, and memory problems. The LPC indicated that these symptoms made it difficult for the Veteran to function daily and interact with members in his social group. The LPC also indicated that the Veteran was unsuitable for work due to his social difficulties, escalation of frustration, and problems with focus. In April 2021, the Veteran provided a private psychiatric assessment. The private psychologist documented symptoms consisting of sadness, withdrawal/isolation, agitation and anger, markedly diminished frustration tolerance, angry outbursts, depression, anxiety, paranoia, nightmares, hypervigilance, panic attacks, passive suicidal ideations, nightmares, poor short and long term memory, poor judgment, intrusive recollections, irritability, hostility, diminished frustration tolerance, and insomnia. The psychologist indicated that the Veteran experienced significant occupational and social impairment with deficiencies in most areas due to these symptoms. The psychologist also indicated that the Veteran was totally disabled emotionally and had been unable to function in any job due to his psychiatric disorder since at least December 27, 2013. The Veteran's contemporaneous VA treatment records document the Veteran's reports that he was in a good relationship with his wife, was close with his brother and cousin, and stayed connected with his friends from the 1990s. The Veteran also demonstrated psychiatric symptoms consisting of depressed mood, impaired judgment, anxiety, limited insight, nightmares, sleep problems, and flashbacks, Throughout the period on appeal, the Veteran provided various lay and buddy statements documenting symptoms of depression, feelings of worthlessness, thoughts of suicide, nightmares, confusion/disorientation, anxiety, withdrawal/isolation, sleep disturbance, panic attacks, and difficulty being around other people. See September 2010 Correspondence, May 2013 Statement in Support of Claim, and May 2013 and January 2021 Buddy Statements. These symptoms are generally consistent with the Veteran's treatment records and VA examination reports. In January 2021, the Veteran and his wife testified at a Board hearing. He reported that that he received all of his treatment through VA, including at a Vet Center, but he had not been to counseling for a while. The Veteran and his wife reported that he exhibited psychiatric symptoms consisting of confusion, paranoia, suicidal ideations, auditory hallucinations, difficulty communicating with others, anger, improper reactions to people, lack of motivation, withdraw/isolation, difficulty with attention/concentration, nightmares, and anger. They also reported that he had no friends left, did not see his children/grandchildren, and stopped volunteering with the honor guard due to interactions with people. After considering the evidence of record under the guiding principles and regulations set forth above, the Board finds that, the evidence is at least in equipoise as to whether the Veteran's PTSD met the criteria for a higher 70 percent rating. The Board acknowledges that the above VA examiners' characterizations of the occupational and social impairment associated with the Veteran's PTSD correlate to less than a 70 percent rating under VA's rating schedule. Nonetheless, the Board finds that the documented symptoms more closely approximate the criteria for a higher 70 percent rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013); see also Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The Board emphasizes that it need not find all or even some of the symptoms to award a specific rating. Id. Rather, 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. Id. at 443. In this regard, the Veteran's persistent symptoms, to include sadness, isolation, agitation and angry outbursts, markedly diminished frustration tolerance, depression, anxiety, paranoia, nightmares, hypervigilance, panic attacks, suicidal ideations, memory problems, poor judgment, intrusive recollections, hostility, diminished frustration tolerance, and insomnia, appear to have affected all aspects of his life and made it difficult for him to perform activities of daily living. As such, in affording the Veteran the benefit of the doubt, the Board finds that his collective symptoms more nearly approximate the criteria for a 70 percent rating under DC 9433. The Board has considered whether a higher 100 percent rating is warranted for the entirety of the appeal period. As noted above, a 100 percent rating requires total social impairment in addition to total occupational impairment. Throughout the entirety of the appeal period, however, this has not been shown. In fact, as indicated above, the record shows that, despite the Veteran's isolation and social difficulties, he has been able to maintain a good relationship with his wife, was close with his brother and cousin, and, at least, up until January 2021, he was able to volunteer. Thus, the Board finds that the Veteran's psychiatric symptomatology has not been adequately described in terms of total social impairment and the criteria for the assignment of a 100 percent rating are not met. 2. Entitlement to an increased disability rating for bilateral hearing loss. The Board emphasizes that any appeal which fails to allege specific error of fact or law in the determination being appealed may be dismissed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. Withdrawal of a claim must be "explicit, unambiguous, and done with a full understanding of the consequences of such action." See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); see also DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In this case, at the January 2021 Board hearing, the undersigned clearly identified the withdrawn issue (entitlement to a rating in excess of 0 percent prior to July 5, 2018, and in excess of 10 percent from that date, for bilateral hearing loss) and explained to the Veteran that by withdrawing the increased rating claim for bilateral hearing loss, no further action would be taken as to that issue in this appeal. The Veteran affirmed the request to withdrawal that issue. The Veteran and his representative also showed a full understanding of the consequences of making such a request; in fact, the Veteran's representative stated that he and the Veteran had "discussed [the withdrawal] extensively." Moreover, the withdrawn issue was not discussed further during the hearing. Accordingly, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action and, therefore, the standards as outlined in Acree and DeLisio were met. Thus, there remains no allegation of error of fact or law for appellate consideration and the Board does not have jurisdiction to review the appeal as to that issue. The appeal of entitlement to an increased rating for bilateral hearing loss is dismissed without prejudice. 3. Entitlement to a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). For the entirety of the appeal period, the Veteran met the schedular requirements for the assignment of a TDIU. See 38 C.F.R. § 4.16(a). In pertinent part, as of the date of this decision, the Veteran's psychiatric disorder is now rated at 70 percent. He is also service-connected for asbestos related pleural plaques rated at 30 percent, tinnitus rated at 10 percent, and bilateral hearing loss rated at 0 percent prior to July 5, 2018 and 10 percent therefrom. Thus, as there was one disability rated at 60 percent or more, the schedular requirements under 38 C.F.R. § 4.16(a) were met. The record shows that the Veteran has one year of college education and worked until 1996 as a laborer for a lumber yard. See May 2014 Application for Increased Compensation Based on Unemployability. The Veteran's VA treatment records and examination reports indicate that his service-connected psychiatric disorder caused debilitating anxiety with panic attacks, affected his memory, and limited his ability to concentrate and to manage his irritability. As indicated above, in the September 2011 treatment summary, the Veteran's LCSW indicated that his debilitating anxiety made it impossible for him to work a regular job. In October 2018, the Veteran's LPC also indicated that he was unsuitable for work due to his social difficulties, escalation of frustration, and problems with focus. Based on the foregoing evidence and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities, specifically his psychiatric disorder, render him unable to secure and follow a substantially gainful occupation. In that regard, the Board notes that the Veteran's psychiatric symptomatology has caused debilitating symptoms of anxiety, memory and concentration problems, and irritability with angry outbursts that would significantly limited his ability to engage with fellow employees and supervisors, complete tasks in a timely manner, and be consistent, reliable, or productive. Accordingly, the Board finds that these limitations significantly eroded his occupational base, making it difficult or nearly impossible for the Veteran to secure and follow a substantially gainful occupation. Therefore, a TDIU is warranted A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.