Citation Nr: 22017603 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-22 605 DATE: March 25, 2022 ORDER Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder prior to December 13, 2019 is denied. Entitlement to a disability rating in excess of 70 percent for an acquired psychiatric disorder from December 13, 2019 to May 4, 2021 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The overall evidentiary record shows that the severity of the Veteran's psychiatric disability most closely approximated the criteria for a 30 percent disability evaluation prior to December 13, 2019. 2. The overall evidentiary record shows that the severity of the Veteran's psychiatric disability most closely approximated the criteria for a 70 percent disability evaluation from December 13, 2019 to May 4, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating for a psychiatric disorder, to include major depressive disorder and panic disorder in excess of 30 percent have not been met prior to December 13, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for a rating for a psychiatric disorder, to include major depressive disorder and panic disorder in excess of 70 percent have not been met from December 13, 2019 to May 4, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from October 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 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 service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A Veteran's entire history is reviewed when assigning a disability evaluation. Further, in determining the level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Correspondingly, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the period on the appeal, the assignment of staged ratings is necessary. Entitlement to a rating in excess of 30 percent prior to December 13, 2019 and 70 percent from December 13, 2019 for an acquired psychiatric disorder The Veteran contends he is entitled to an increased rating for depression and panic disorder. The Veteran has submitted private medical records that he contends will support an increased rating. See April 2015 Notice of Disagreement. The Veteran was initially granted service connection for a psychiatric disorder in a June 2012 rating decision, which assigned a 30 percent rating, effective June 13, 2011, the day VA received the claim. After that decision became final, the Veteran submitted an application for an increased rating in September 2014. The RO continued the 30 percent rating on a February 2015 rating decision, and the Veteran appealed this decision on an April 2015 notice of disagreement (NOD). In a June 2020 rating decision, the RO increased the assigned 30 percent rating to 70 percent, effective December 13, 2019. The Veteran subsequently presented a claim for Increased Compensation Based on Unemployability on a May 2021 VA Form 21-8940. In a June 2021 rating decision, the RO increased the assigned 70 percent rating to 100 percent, effective May 4, 2021. The following analysis addresses whether the Veteran is entitled to a disability rating for a psychiatric disorder higher than 30 percent prior to December 13, 2019, and in excess of 70 percent from December 13, 2019 to May 4, 2021. The Veteran was assigned a 100 percent rating from May 4, 2021. Therefore, the period following this date is not before the Board, as it represents a full grant of benefits sought. For major depressive disorder and panic disorder, the relevant rating criteria are as follows: Under Diagnostic Code 9434, a 30 percent rating is warranted when 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation requires 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. Id. A 70 percent rating is prescribed when there is evidence of 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. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. 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. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A. Entitlement to a rating in excess of 30 percent prior to December 13, 2019 The medical evidence, combined with the Veteran's subjective reports of his symptoms, indicates that the severity level of his psychiatric disorder warrants no more than the currently assigned 30 percent rating. The evidence shows that the Veteran's anxiety disorder caused 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: sleep impairment, depressed mood, and anxiety. 38 C.F.R. § 4.130, Diagnostic Code 9400. The Veteran was afforded a VA examination in February 2015 which revealed a diagnosis of major depressive disorder and panic disorder with agoraphobia. The symptoms noted were depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The examiner noted that the effect the symptoms have upon total daily functioning is a minimal impact. The Veteran has directed the Board to review private treatment records dated March 2015. After a thorough review, the Board finds that these records do not substantiate an increase, and a disability rating in excess of 30 percent is not justified. The March 2015 provider noted symptoms such as sleep impairment, anhedonia, depression, and anxiety. The provider noted that the Veteran's "condition waxes and wanes from regression to recovery." The Veteran was observed as being alert and oriented x4, with depressed mood and congruent affect. Concentration, memory, insight, and judgment were good. The Veteran denied delusions, suicidal thoughts and homicidal thoughts. This disability picture most closely approximates the 30 percent disability rating. The next higher, 50 percent rating, is not demonstrated by the evidence of record, as the Veteran's psychiatric disorder was not manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: circumstantial, circumlocutory or stereotyped speech, 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. Id. The provider voiced concerns as to whether the anxiety disorder is considered a separate disorder, and how that would impact the disability evaluation. The provider opined that the Veteran's anxiety disorder is inextricably intertwined with his major depression. Whether the two psychiatric disorders are considered together or separate is inconsequential to the claim. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that, in determining the scope of a claim, the Board must consider the claimant's description of the claim, symptoms described, and the information submitted or developed in support of the claim. As such, as all psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders ("General Rating Formula"). The Board has also considered whether VA medical records might support a grant for a higher rating. All of the medical records during this period on appeal noted that the Veteran had good memory, judgment, and insight, with no delusions, hallucinations, suicidal thoughts or homicidal thoughts. See e.g. September 2018, December 2018, April 2019, October 2019 VA treatment records. The evidence does not show that symptomatology associated with the Veteran's unspecified trauma related disorder more nearly approximates the schedular criteria associated with a higher rating than the currently assigned 30 percent rating, prior to December 13, 2019. Therefore, the Veteran's psychiatric disorder warrants no more than the currently assigned 30 percent rating for this period on appeal. A. Entitlement to a rating in excess of 70 percent from December 13, 2019 to May 4, 2021 The Board finds that the Veteran's psychiatric symptoms have not caused the level of impairment required for a disability rating of 100 percent during this period on appeal. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. Evidence of record does not show total occupational and social impairment. The December 2019 VA examiner noted symptoms such as depressed mood, anxiety, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, adapting to stressful situations, and impaired impulse control. The examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner also noted the Veteran has a good relationship with his wife and son, thought processes were logical and sequential, he was casually dressed and groomed, and capable of managing his own financial affairs. These findings do not indicate that the severity, frequency, and duration of the Veteran's symptoms has risen to the level contemplated by the 100 percent disability rating. The evidence shows that the Veteran did not show symptoms such 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, or memory loss for names of close relatives, own occupation, or own name. In assessing the Veteran's symptomatology in toto as to any portion of the period on appeal, the Board finds that none of the relevant evidence of record informs the Board of a symptomatology that warrants a rating in excess of what has been contemplated and assigned by the highest rating on the rating scale. For the reasons stated above, the Board finds that the weight of the evidence establishes that the Veteran's psychiatric disorder has most closely approximated the 70 percent criteria for this period on appeal and any claim seeking a higher disability rating from December 13, 2019 to May 4, 2021 must be denied. As the more probative evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) is part and parcel of an increased rating claim when such claim is raised by the Veteran or the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for TDIU has been raised by the Veteran on the May 2021 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must 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) (2018). In determining whether the Veteran is eligible to receive TDIU benefits prior to December 13, 2019, the Board observes that the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU. In exceptional circumstances, where the Veteran does not meet the schedular TDIU criteria, a total rating may be assigned on an extraschedular basis upon a showing that he is unable to obtain or retain substantially gainful employment due solely to service-connected disabilities. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: (Continued on the next page) 1. Refer this matter to the Director of Compensation Service for consideration of whether an extraschedular rating for the service-connected psychiatric disabilities is warranted pursuant to 38 C.F.R. § 4.16(b). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, Associate 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.