Citation Nr: 21042089 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-20 740A DATE: July 12, 2021 ORDER A rating higher than 70 percent for adjustment disorder with mixed depression, anxiety, and undifferentiated somatoform disorder (psychiatric disorder) is denied. An effective earlier than October 2, 2011 for the award of a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's psychiatric disorder has not been manifested by symptoms matching or equivalent in severity, frequency, and duration to the symptoms listed for a 100 percent rating, or by total occupational and social impairment. 2. The Veteran had substantially gainful employment until at least 2012. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent for adjustment disorder with mixed depression, anxiety, and undifferentiated somatoform disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.30, Diagnostic Code 9440. 2. The criteria for an effective date earlier than October 2, 2011 for the award of TDIU have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.15, 4.16, 4.19 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to March 2001, and from February 2006 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2017. A transcript of the hearing is of record. In a May 2018 decision, the Board, in pertinent part, granted a rating of 70 percent for the Veteran's service-connected psychiatric disorder, but denied a rating of 100 percent. In a December 2018 Order, the Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) and vacated the Board's decision to the extent it denied a rating higher than 70 percent for the Veteran's psychiatric disorder. In that regard, the JMPR found that it was premature for the Board to adjudicate that issue while remanding the issue of entitlement to TDIU. The Court remanded the matter to the Board for action consistent with the terms of the JMPR. The Board then remanded the matter to the agency of original jurisdiction in June 2019 and May 2020. A March 2021 rating decision granted TDIU effective October 2, 2011. The Board finds that the issue of whether TDIU may be awarded prior to October 2, 2011 remains in appellate status. More specifically, if the claimant or the record reasonably raises the issue of unemployability due to the disability or disabilities for which an increased rating is sought, then part and parcel of that claim is the issue of whether a TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). By the same token, the grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Id. at 454. Therefore, as the Veteran's claim for an increased rating was filed on August 31, 2010, the issue of whether an effective date between August 31, 2010 and October 2, 2011 may be established for the award of TDIU is before the Board. See id. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. 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. The percentage ratings represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluation of adjustment disorder with mixed depression, anxiety, and undifferentiated somatoform disorder. For the following reasons, the Board finds that the criteria for a rating higher than 70 percent for the Veteran's psychiatric disorder have not been met. A. Rating Criteria The Veteran's psychiatric disorder is rated under Diagnostic Code (DC) 9440, which pertains to chronic adjustment disorder. 38 C.F.R. § 4.130. Almost all mental health disorders, including chronic adjustment disorder, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. As relevant to this appeal, under the General Rating Formula, a 70 percent rating requires: 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.) A 100 percent rating requires: 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. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather 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 appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-V). Id. at 443; see 38 C.F.R. § 4.130. If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, 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. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b). B. Analysis The record shows that the Veteran has not had symptoms matching or equivalent in severity, frequency, and duration to the symptoms associated with a 100 percent rating. The July 2016 VA examination report, for example, shows that for rating purposes, the examiner found that the Veteran's symptoms consisted of depressed mood, anxiety, chronic sleep impairment, mild memory loss, circumstantial, circumlocutory, or stereotyped speech, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and neglect of personal appearance and hygiene. The March 2021 VA examination report echoes those findings, and also finds impairment of short- and long-term memory. Such symptoms are expressly contemplated by the criteria for ratings of 50 percent and 70 percent under the General Rating Formula. See 38 C.F.R. § 4.130. Therefore, it follows that such symptoms are not equivalent in severity, frequency, or duration to the symptoms listed for a 100 percent rating. In addition, the record does not show total social impairment. The July 2016 VA examination report reflects that the Veteran related he was residing with his fifteen-year-old son, and that he had a girlfriend. He also had several friends. A September 2019 VA treatment record reflects that the Veteran had recently moved to be closer to a friend. An October 2019 record states he was planing on flying to another state to be with his son. The March 2021 VA examination report reflects that he was living with a brother. He was working to fix his home on his own. In sum, the evidence shows that the Veteran does not have symptoms matching, or equivalent to, the symptoms listed for a 100 percent rating, or total occupational and social impairment. Accordingly, the criteria for a rating higher than 70 percent have not been met. See 38 C.F.R. § 4.130. As discussed in the Board's May 2018 decision, the Veteran's psychiatric disorder is also manifested by dystonic and seizure-like symptoms, which have not been found to have an underlying objective physiological cause. These manifestations and their disabling effects are taken into account in the evaluation of the Veteran's psychiatric disorder under the General Rating Formula. In this regard, the rating schedule applicable to mental health disorders provides that when a single disability has been diagnosed as both a physical condition and a mental disorder, the rating agency shall evaluate it using a diagnostic code which represents the dominant (more disabling) aspect of the condition. 38 C.F.R. § 4.126(d). Here, the dominant and most disabling aspect of the Veteran's disability is psychiatric in nature, and thus is properly evaluated under the General Rating Formula. By the same token, referral of this claim for extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted, as the dystonic and seizure-like manifestations are contemplated by the criteria for mental health disorders. See id.; see also 38 C.F.R. § 4.130 (providing that somatic symptom and related disorders (DC's 9421 and 9422) and conversion disorder (functional neurological symptom disorder) (DC 9424) are to be rated under the General Rating Formula); Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). As the preponderance of the evidence is against a rating higher than 70 percent for the Veteran's psychiatric disorder, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533 at *10 (Fed. Cir. June 3, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107. TDIU A. Law Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disability. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993) (holding that the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). 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. 38 C.F.R. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Although the Board must fully consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.1(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of entitlement to TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. Id. If the schedular requirements for TDIU are not satisfied, but the veteran is still found unemployable due to service-connected disabilities, the case will be submitted to the Director of the Compensation Service (Director) for extra-schedular consideration. 38 C.F.R. § 4.16(b). Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533 at *10 (Fed. Cir. June 3, 2021) (holding that if the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt). B. Analysis The March 2021 rating decision granted TDIU effective October 2, 2011 because it found that the Veteran last worked on that date. For the following reasons, the Board finds that entitlement to an effective date earlier than October 2, 2011 for the award of TDIU is not established. Since the August 31, 2010 date of claim for an increased rating, the Veteran's psychiatric disorder has been assigned a 70 percent rating. Thus, the percentage requirements for schedular entitlement to TDIU are satisfied. See 38 C.F.R. § 4.16(a). In Ray v. Wilkie, the Court held that the phrase "unable to secure and follow a substantially gainful occupation" in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component "simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person." 31 Vet. App. 58, 72-73 (2019). Here, the Board finds that the economic component for the period prior to October 2, 2011 has not been met. The Veteran submitted a statement in December 2010 (VA Form 21-4138) requesting individual unemployability due to his dystonic movements with recurring seizures. However, the record indicates that he continued working in substantially gainful employment until at least 2012. In this regard, the August 2010 VA examination report reflects that he had been working full time as a wastewater technician for the past one to two years, had had lost only one week of work in the past year due to medical appointments and a short-term leave of absence. A January 2011 VA treatment record reflects that he was concerned he was going to lose his job "at any time" due to blackouts and tremors, which resulted in his sleeping for several days. A March 2011 VA treatment record states that he reported presenting sick to the outpatient clinic that day, and needed a doctor's note to return to work. He stated he would be off work for the next two days as those were his days off. However, he was expected to return to work thereafter. An October 2011 letter from the Veteran's former employer states that because he had been unable to perform his job duties since July 23, 2011, and the maximum amount of time under the Family and Medical Leave Act (FMLA) had been exhausted, his job was terminated effective October 13, 2011. The Veteran's October 2011 and March 2019 applications for TDIU (VA Form 21-8940) state that his last employment ended in October 2011, consistent with the above employer letter. They also state that he had lost 180 days of work due to illness. While the above evidence seems to indicate he last worked in July 2011, with his employment officially ending in October 2011, the record shows he subsequently found other employment. Specifically, the February 2012 VA Gulf War examination report reflects that he was then employed full time, although he was only able to work 30 hours per week. A June 2012 VA treatment record states that he stopped taking Depakote and was able to accomplish things at work. He stated he relied on caffeine "to get him by" at work. He found his back hurting, which made his job difficult. A July 2012 VA treatment record similarly reflects that he was working thirty hours per week. In short, notwithstanding what the Veteran stated in his applications for TDIU, the probative evidence shows he was working thirty hours per week as late as July 2012. The record does not establish that his employment was marginal in terms of income or in a sheltered work environment. Given the evidence reviewed above, the Board is unable to establish an effective date for the award of TDIU prior to October 2, 2011, as the record shows he was employed and working thirty hours per week in 2012. While he may have had a period of unemployment following the October 2011 termination of his prior job, and although he had not been at work from July 2011 to October 2011 according to the October 2011 employer letter, the 2012 VA treatment records and examination reports show that he subsequently found substantially gainful employment, which weighs against a finding of unemployability for the period prior to October 2011. Consequently, as the economic component is not satisfied for the period at issue, the criteria for an effective date prior to October 2, 2011 for the award of TDIU have not been met. See 38 C.F.R. § 3.400. (Continued on next page) As the preponderance of the evidence shows that the criteria for TDIU were not met prior to October 2, 2011, there is not an approximate balance of positive and negative evidence; therefore, the benefit-of-the-doubt rule does not apply. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 16533 at *10 (Fed. Cir. June 3, 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.