Citation Nr: 22016483 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 15-37 499 DATE: March 22, 2022 ORDER Entitlement to a 70 percent rating, but no more, for an acquired psychiatric disorder, to include depressive disorder, is granted. Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the entire period of the appeal, which extends back to September 6, 2010, the Veteran's psychiatric disorder was shown to be productive of a disability picture that equated to occupational and social impairment with deficiencies in most areas; however, the evidence is persuasively against a determination that he experienced total social and occupational impairment prior to death. 2. The Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation for the entirety of the appeal period. CONCLUSIONS OF LAW 1. From September 6, 2010, the criteria for a disability rating of 70 percent, but no more, for an acquired psychiatric disorder, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.14, 4.40, 4.59, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU have been met from September 6, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty, including from November 1985 to October 1988. He died in October 2013. The appellant is the Veteran's surviving spouse and has been accepted as a proper substitute for the Veteran. These matters were last before the Board in May 2021, following a January 2019 hearing, whereupon they were remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a December 2021 supplemental statement of the case continuing the denial of entitlement to an increased initial rating for an acquired psychiatric disorder as well TDIU, this case was certified to the Board for its consideration. Most recently, the appellant through her representative submitted additional medical evidence in February 2022 in support of both claims; she has explicitly waived AOJ review of this evidence and requests that the Board proceed with its adjudication without necessitating additional adjudication by the AOJ below. Additionally, the Board acknowledges that the appellant's representative in the most recent brief on appeal dated in March 2022 contended that entitlement to a separate evaluation for the Veteran's non service-connected seizure condition is part and parcel of the extant claim seeking an increased rating for the acquired psychiatric disorder. The Board, however, notes that service connection for seizures was previously denied in a final July 2010 rating decision, and there is no competent medical or lay evidence of record from the Veteran's lifetime linking seizures with the service-connected psychiatric disorder. The Veteran himself did not make this contention during his lifetime. Accordingly, the Board will not address this matter further. Entitlement to an Increased Rating for an Acquired Psychiatric Disorder The appellant seeks a rating in excess of 30 percent for the Veteran's acquired psychiatric disorder. The underlying claim for an increase was submitted on September 6, 2011; accordingly, the period on appeal extends from the date of his passing, October 21, 2013, back to up to one year prior to the date of the claim, that is, September 6, 2010. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o); VAOPGCPREC 12-98 (1998). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 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 a rating 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 a rating solely on the basis of social impairment. See 38 C.F.R. § 4.126. The rating at issue was assigned pursuant to the General Rating Formula for Mental Disorders as outlined in 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the General Rating Formula, a rating of 30 percent is warranted if there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. Id. 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 symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. The use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase 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 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). During the relevant time period on appeal, the severity of the acquired psychiatric disorder was never evaluated by a VA examiner. The Veteran did undergo some mental health treatment sessions at his local VA medical center. A psychology note shows that the Veteran continued to report experiencing depressive symptomatology. He denied any suicidal or homicidal ideation as well as hallucinations or delusions. A July 2011 psychology note reflects that the Veteran lost 40 pounds in the past six months. He reported that he was planning on getting a divorce from his wife. He again denied any suicidal or homicidal thoughts. A November 2011 outpatient record reflects that the Veteran was compliant with his medication, and he once again denied any suicidal or homicidal ideation. Mental health outpatient notes dating in March 2012, October 2012, April 2013 and August 2013 show that the Veteran continued to be compliant with medication and denied suicidal and homicidal ideation. The more recent records in 2013 indicate chronic depression, memory problems, poor sleep and apathy. In a December 2011 statement, the Veteran asserted that he slept about 10 to 16 hours per day, and, when he was awake, he had no energy or motivation to do anything. He also related that his memory was very poor, to the point that if he did not write something down, he would forget it immediately. In a February 2012 statement, the Veteran's mother, a L.G.L., related that he lived with her for the past 7 years, such that she observed him on a daily basis. According to L.G.L., the Veteran spent most of his time in bed and rarely socialized with anyone. She also detailed that he was quick-tempered and often neglected his personal care and hygiene. She noted that he made comments suggesting that he was considering suicide, although she was not aware that he had actually made an attempt on his life. The appellant submitted a correspondence dated in July 2018 from a Dr. P.J., who indicated that she reviewed some of the available medical records in the claims file. It was her opinion that the Veteran warranted a 70 percent rating for the service-connected acquired psychiatric disorder. In support thereof, she highlighted that the Veteran had a poor appetite and also was often dehydrated, reflecting that he did not take care of his basic needs. She also found that the Veteran's cause of death, cocaine toxicity, was directly related to his acquired psychiatric disorder, as he likely used cocaine in order to alleviate the symptoms of the condition. During the January 2019 hearing, the appellant related that the Veteran expressed a desire to commit suicide on multiple occasions. According to her, the Veteran began using cocaine more heavily prior to his death in an attempt to end his life. In a November 2021 correspondence, the appellant detailed that the Veteran did not attend to his personal hygiene and would stay in bed for days at a time unless prompted to get out of bed and clean himself. According to the appellant, he would need assistance with managing his medication due to his poor memory. She also asserted that the Veteran told her on several occasions that he did not want to live anymore. In a February 2022 evaluation report, a S.M.H., who identified herself as a vocational consultant who reviewed the entire claims file, found that the Veteran was completely precluded from securing and following substantially gainful employment solely due to his service-connected psychiatric disorder. Specifically, she highlighted evidence suggesting that the disorder contributed to the Veteran experiencing daily fatigue, chronic depression and anxiety, poor memory, impaired sleep, and intermittent suicidal ideation, all of which would have made it very difficult for the Veteran to remain on task and be productive in a work setting. Upon review of the record, the Board finds that the evidence is persuasively in favor of a determination that a 70 percent rating is warranted for the Veteran's acquired psychiatric disorder for the entirety of the appeal period, that is, from September 6, 2010. Primarily, the Board notes that the evidence suggests that the Veteran was exhibiting suicidal ideation during this entire time period. Furthermore, both Dr. P.J. and S.M.H. in their retrospective evaluations found that the psychiatric disorder contributed to significant impairment of occupational and social functioning commensurate with no less than the 70 percent rating. In support thereof, both Dr. P.J. and S.M.H. noted that the psychiatric disorder contributed to symptomatology including chronic depression and anxiety, apathy, significant sleep impairment, and memory issues. Moreover, both the Veteran in his own testimony as well as both his mother and the appellant have attested to his inability to care for his hygiene and basic necessities, up to and including forgetting to eat. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 70 percent is warranted from September 6, 2010. However, the Veteran's symptomatology did not meet the criteria for a 100 percent rating at any time during the appeal period. While the evidence does show that the Veteran neglected his personal hygiene and appearance, he did not exhibit grossly inappropriate behavior, which is a component of a 100 percent evaluation. Moreover, there is no indication that the Veteran experienced hallucinations or memory loss for his own name or the names of close relatives during the appeal period. Most significantly, there is no indication that he experienced total occupational and social impairment as due to his service-connected psychiatric disorder; to that end, the Board highlights that he continued his relationship with the appellant and some close relatives and friends up to the date of his passing. Accordingly, a 100 percent evaluation is not warranted. TDIU Total disability ratings for compensation based upon individual unemployability may be assigned when the combined schedular rating for the claimant's service-connected disabilities is less than 100 percent, and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities sufficient to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In addition to the newly granted 70 percent rating for acquired psychiatric disorder for the entirety of the appeal, the Veteran was also service-connected the following: migraine headaches, rated as 50 percent disabling from September 6, 2011; residuals of a traumatic brain injury, rated as 30 percent disabling from October 23, 2009; tinnitus, rated as 10 percent disabling from October 23, 2009; left and right knee conditions, rated as 10 percent disabling each from January 26, 2012; and hemorrhoids, rated as noncompensable. Therefore, the Veteran met the criteria for consideration for a grant of TDIU on a schedular basis for the entirety of the appeal period, which extends back to September 6, 2010. However, the evidence must still demonstrate that the service-connected disabilities precluded the Veteran from securing and following substantially gainful employment for the same period. To that end, the Board notes that the appellant has submitted evaluations from a Dr. P.J. and a S.M.H., dated in July 2018 and in February 2022, respectively, wherein both individuals concluded that the Veteran was precluded from securing and maintaining substantially gainful employment by virtue of his service-connected disabilities in combination. As both of these evaluation reports are detailed above, the Board will not discuss them further here, other than to reiterate that they are both highly probative of the ultimate determination as to whether TDIU is warranted, as both Dr. P.J. and S.M.H. indicated that they reviewed the claims file and relied on the Veteran's medical history in arriving at their conclusions. Sklar v. Brown, 5 Vet. App. 140 (1993). After a review of the record, the Board finds that the available evidence is at least in equipoise as to the issue of whether the Veteran's service-connected disabilities precluded him from securing and following substantially gainful employment during the entire appellate period. Essentially, there is no evidence of record which serves to undermine the conclusion of both Dr. P.J. and S.M.H. Indeed, the medical and lay evidence corroborates their conclusion, as this evidence demonstrates that the Veteran experienced sleep problems, neglect of personal hygiene, depression, anxiety, and lack of motivation, all of which clearly would significantly impair his ability to function in an occupational setting. The Board also highlights that although it declined to grant a total disability rating for the PTSD, this does not discount the possibility that the PTSD precluded him from securing and following substantially gainful employment, as these standards are distinct. Accordingly, in light of the evaluations of Dr. P.J. and S.M.H., the Board finds that TDIU is warranted for the entirety of the appeal period. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Collins, 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.