Citation Nr: 23019293 Decision Date: 03/29/23 Archive Date: 03/29/23 DOCKET NO. 18-51 032 DATE: March 29, 2023 ORDER An initial rating in excess of 70 percent for phobic disorder with alcohol and cocaine dependence in full remission (phobic disorder) from April 21, 2014, forward is denied. REMANDED Entitlement to compensation for total disability based on individual unemployability (TDIU) prior to April 21, 2014, is remanded. Entitlement to an initial rating in excess of 50 percent for phobic disorder prior to April 21, 2014, is remanded. FINDING OF FACT The evidence weighs persuasively against finding the Veteran's phobic disorder caused total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent from April 21, 2014, forward for phobic disorder with alcohol and cocaine dependence in full remission have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9403. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from November 1968 to October 1971. 1. An initial rating in excess 70 percent from April 21, 2014, forward for phobic disorder Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Under the General Rating Formula, the criteria for a 30 percent rating are: 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). The criteria for 50 percent rating are as follows: 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for 70 percent rating are as follows: 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; obsessive 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. The criteria for 100 percent rating are as follows: 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, own name. 38 C.F.R. § 4.130, Diagnostic Code (DC) 9403. Based on the evidence of record, the Board finds the criteria for assignment of an initial rating in excess of 70 percent for the Veteran's phobic disorder have not been met. 38 C.F.R. § 4.130, DC 9403. Beginning April 21, 2014, the evidence does not show symptoms of phobic disorder consistent with total occupational and social impairment. First, although a January 2019 private evaluator, Dr. M.B., opined that the Veteran was in persistent danger of hurting himself, the evidence does not show persistent danger during the period at issue. On April 21, 2014, the Veteran first reported calling the suicide hotline. Although Dr. M.B. noted that the Veteran experienced suicidal ideation in February 2016 and January 2019, in VA treatment records from May 2014 to August 2015 and April 2016 to May 2017 the Veteran consistently denied having suicidal ideation. The March 2019 VA examiner also did not indicate suicidal ideation. Similarly, in the September 2021 correspondence, the Veteran described his suicidal thoughts as occasional. Accordingly, while Dr. M.B. indicated the Veteran was in persistent danger of hurting himself or others, the remainder of the evidence weighs persuasively against such a finding. Rather, the evidence supports suicidal ideation consistent with a 70 percent disability rating. There is no evidence that the Veteran was disoriented or had memory loss consistent with forgetting the names of close relatives, own name, or own occupation, or symptoms of similar severity. Although the evidence shows the Veteran experienced some impairment in the ability to concentrate and complete tasks, there is no indication that he experienced gross impairment of thought processing or communication. Despite the January 2019 evaluator's notation that the Veteran's depression affected the ability to function independently and effectively, the remainder of the evidence shows he was able to independently care for himself. The Veteran reported living alone or with roommates, and he appeared to provide his own meals, dress and bathe himself, and attend regular medical appointments. During the March 2019 VA examination, the Veteran reported living with male and female roommates with whom he had good relationships and going to the bar to play poker with friends every day. While the Veteran reported an inability to wait in doctors' offices and go to the grocery store in the September 2021 statement, VA treatment records show he regularly attended medical appointments, appeared well nourished and appropriately dressed and groomed, and was able to go out to a bar every day. Lastly, Veteran reported having good relationships with friends and roommates and interacting with bar patrons every day, which demonstrates the ability to regularly socialize with many different people. Thus, the Veteran cannot be deemed to be "totally" socially impaired. Although the Veteran's symptoms no doubt cause serious difficulties, the serious nature of those symptoms are reflected in his already-assigned 70 percent rating. The 70 percent rating assigned compensates for significant impairment with deficiencies in most areas including suicidal ideation, difficulty adapting to stress and some neglect for appearance. Here, however, the evidence weighs persuasively against a "total" occupational and social disability and corresponding symptoms of the severity, duration, and frequency to be consistent with gross impairment of thought, communication or behavior or other deficiencies of a 100 percent rating. REASONS FOR REMAND 1. Entitlement to compensation for TDIU prior to April 21, 2014, is remanded. 2. Entitlement to an initial rating in excess of 50 percent for phobic disorder prior to April 21, 2014, is remanded. In the present case, the Veteran asserts that his service-connected phobic disorder prevented him from working successfully throughout the claim period. He currently receives compensation for TDIU beginning April 21, 2014. The Board finds additional development would be helpful to assign the appropriate compensation prior to April 2014. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). During January 2012 treatment, the Veteran stated that "everything [was] pretty good," he had a new girlfriend, and they usually went out on weekends. The treating provider noted the Veteran appeared well-groomed and appropriately dressed, cooperative and pleasant, with normal speech, appropriate affect, logical and goal-directed thought, no hallucinations or delusions, intact judgment and insight, full orientation, intact attention and concentration, and grossly intact memory. During the April 2012 VA examination, the Veteran reported living alone with his dog, being involved in karaoke at a local bar, going around others regularly but avoiding crowds, impediments to becoming close with others, reactive rather than generalized anxiety, and denied suicidal ideation, clinically significant depression, mood swings, or mania. The examiner recorded anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and phobic responses to crowds, enclosed spaces, cars stuck in traffic, and other situations of perceived prolonged confinement. A May 2012 treating provider found the Veteran had good judgment and insight, full orientation, and alert mood. In June and August 2012, the Veteran reported anxiety symptoms and sleep impairment but living with his dog, maintaining an active social life, making friends and talking to patrons at bars, singing karaoke, and cooking for himself. The providers noted he was casually dressed, well groomed, and cooperative with formal speech, logical and goal-directed thought, full orientation, intact attention and concentration, grossly intact memory, and poor judgment and insight. In an October 2012 statement, the Veteran's ex-wife wrote that his nervous condition was severe, he could not be in any place without feeling confined, he never held a job for any length of time, and he made poor decisions about intimate relationships. The Veteran's friend, M.K., also reported the Veteran's anxiety disorder impacted his ability to work and witnessing the Veteran get irritated in traffic to the point of making the passenger nervous and when he had to sit somewhere too long. See October 2012 statement. The November 2012 VA examiner noted the Veteran's phobia did not cause problems in social relationships and general functioning and was consistent with the criteria for a 50 percent rating. The Veteran reported not being in a romantic relationship in years, having a good relationship with his child when she was not in jail, not seeing his grandchildren in two years, and being paralyzed from a spinal cord injury in 1996. The examiner recorded anxiety, panic attacks weekly or less often, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and not posing a threat of danger or injury to self or others. In March 2013, the Veteran was noted to have good judgment, good insight, full orientation, and alert mood. In October 2013, he endorsed having a whole lot of anxiety and trying not to leave the house much, as well as feelings of hopelessness at times, fair sleep, and no suicidal or homicidal ideations. In January 2014, the Veteran reported the death of his dog, having a girlfriend of four to five years, and drinking three to five drinks per day. The providers in October 2013 and January 2014 recorded normal speech, logical and goal-directed thought, poor to good insight, fair to good judgment, no delusions or obsessions, and grossly intact memory and concentration. In the September 2021 statement, the Veteran reported having similar impairments and being unable to hold down a job since the 1980s. The November 2012 VA examiner opined that while the Veteran's mental health disorder impacted functioning, his unemployability was more likely attributed to non-service-connected medical problems. However, this opinion focuses incorrectly on impairment from non-service-connected disabilities and does not adequately address whether the Veteran's phobic disorder, alone, could render him unable to secure and follow a substantially gainful occupation prior to April 2014. In the January 2019 evaluation, Dr. M.B. diagnosed the Veteran with posttraumatic stress disorder, generalized anxiety disorder, and severe major depression and noted many functional limitations caused by the Veteran's mental health disabilities. It is unclear from Dr. M.B.'s evaluation if all or only some of the recorded impairment is attributable to service-connected phobic disorder and how long the Veteran experienced that level of impairment. First, the Board finds an additional medical opinion would be helpful that considers the Veteran's symptoms prior to April 2014 as well as the differing diagnoses of record and opines as to how the Veteran's service-connected phobic disorder would have impacted him in an occupational setting prior to April 21, 2014. Because evidence from this opinion could affect the rating for phobic disorder prior to April 2014, the issue of entitlement to a rating in excess of 50 percent prior to April 21, 2014, is remanded as intertwined. Next, the Board notes that to be eligible for TDIU based on a single service-connected disability, a 60 percent rating is generally required. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran's only service-connected disability is phobic disorder, which was rated 50 percent prior to April 21, 2014, and did not meet the threshold requirements for TDIU. Nevertheless, VA policy is to rate totally disabled all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). Given the lay evidence of impairment on employment, if the Agency of Original Jurisdiction (AOJ) continues the 50 percent rating for phobic disorder, the AOJ should refer the claim of TDIU prior to April 21, 2014, to the Director, Compensation Service, for extra-schedular consideration. See id. The matters are REMANDED for the following action: 1. Request a medical opinion on the Veteran's occupational functioning prior to April 21, 2014. Specifically, the medical expert should explain how the Veteran's service-connected phobic disorder would affect his functioning in a work environment, including what types of impairment he would face and tasks he could complete. The examiner should consider the January 2019 private evaluation and attempt to explain whether the level of impairment reported therein by Dr. M.B. could be attributed to service-connected phobic disorder prior to April 21, 2014. 2. If the Veteran's service-connected disability rating continues to not meet the schedular requirements from TDIU, refer this case to the Director, Compensation Service for extra-schedular consideration. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.