Citation Nr: 23019945 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 18-38 419 DATE: March 30, 2023 ORDER Entitlement to a rating of 50 percent for an acquired psychiatric disorder prior to August 25, 2022 is granted. Entitlement to a rating in excess of 50 percent for an acquired psychiatric disorder is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms most closely approximate occupational and social impairment with reduced reliability prior to August 25, 2022. 2. The severity, frequency, and duration of the Veteran's symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas nor total occupational and social impairment at any time during the appeal period. 3. The evidence does not demonstrate that the Veteran's service-connected disability renders him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent for an acquired psychiatric disorder have been met prior to August 25, 2022. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9410; 38 C.F.R. § 3.400(o)(2). 2. The criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9410. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty military service from October 1966 to November 1968. This appeal stems from a February 2017 rating decision continuing the Veteran's 30 percent rating for his service-connected acquired psychiatric disorder. The matters were remanded by the Board of Veterans' Appeals (Board) in June 2022. The Board finds that there has been substantial compliance with its prior remand directives. Stegall v. West, 11. Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Acquired Psychiatric Disorder The Veteran contends that his acquired psychiatric disorder warrants a rating in excess of 30 percent. After the June 2022 Board remand, the agency of original jurisdiction (AOJ) granted a 50 percent evaluation of the Veteran's acquired psychiatric disorder effective August 25, 2022, the date of the Veteran's most recent VA psychiatric examination. The unanswered matters before the Board are whether a rating in excess of 30 percent prior to August 25, 2022 and a rating in excess of 50 percent thereafter is warranted. Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and shall assign an evaluation 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. 38 C.F.R. § 4.126(a). Under the General Rating Formula, a 30 percent rating is warranted for 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). A 50 percent rating is assigned 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. A 70 percent rating is assigned for 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. The maximum 100 percent rating is assigned for 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; and memory loss for names of close relatives, own occupation, or own name. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "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, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. After careful review of the record, the Board finds that the Veteran's acquired psychiatric disorder manifested functional impairment equivalent to occupational and social impairment with reduced reliability and productivity to the extent that a rating of 50 percent may be assigned. 38 C.F.R. §§ 3.155, 38 C.F.R. § 4.130, DC 9410. No other higher staged ratings are appropriate during the period on appeal. In reaching this conclusion, the Board has reviewed the medical evidence, to include VA treatment records and VA examination reports, as well as the pertinent lay evidence of record. The Veteran was afforded a VA examination in February 2017 in association with this appeal. At the outset, the Board must address the Veteran's various contentions that the February 2017 examination was inadequate. The Veteran contends that the examiner was not qualified to conduct the examination. A review of the February 2017 examination report shows that the examiner who conducted the examination is indeed a licensed psychologist as evidenced by the signature line. The Board finds that the examiner who conducted the February 2017 had the proper credentials to do so. The Veteran also stated that the 2017 examination lasted less than five minutes and that the examiner misrepresented the total number of the Veteran's children. After reviewing the 2017 examination report, the Board finds that the examiner was able to ascertain sufficient information to support the examination's findings. The number of children that the Veteran has (for example, 2 versus 3 children) is not material to an inquiry into the Veteran's occupational and social impairment but rather it was the attestation by the Veteran that his relationship with his children is "alright" that is deemed material. Although the examiner who conducted the February 2017 examination identified "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication", the Board shall weigh the probative value of all the evidence of record that bears on occupational and social impairment. 38 C.F.R. § 4.126(a); 38 C.F.R. § 4.6. During the February 2017 examination the Veteran reported, "I don't know, I don't really have friends." Further, it was asserted in the examination report, "The Veteran stated he is sometimes involved in arguments with management where the Veteran feels he is being blamed for everything systematic." This evidence, when viewed in a light most favorable to the Veteran, shows occupational and social impairment with reduced reliability and productivity with additional symptoms of "difficulty in establishing and maintaining effective work and social relationships." 38 C.F.R. § 4.130, DC 9410. An August 2022 VA examination report showed occupational and social impairment with reduced reliability and productivity with symptoms to include depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, direction, or recent event, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Veteran reported that, although his last six months at his job were stressful, he did not think that it negatively impacted his performance. He had good evaluations for the whole 38 years of his career until his final review. The Veteran denied irritability with peers. He denied problems with attention and concentration. In summary, when all doubt is resolved in favor of the Veteran, the frequency, severity, and duration of the Veteran's psychiatric symptoms most closely approximate a 50 percent evaluation of the Veteran's acquired psychiatric disorder during the entire period on appeal. 38 C.F.R. § 4.130, DC 9410; 38 C.F.R. § 4.3; 38 C.F.R. § 3.102. The period on appeal began on September 22, 2016, when VA received the Veteran's "intent to file". The Veteran was employed at the time that he filed the claim for increase. A September 3, 2015 Community Based Outpatient Clinic (CBOC) record shows that the Veteran was experiencing elevated levels of anxiety triggered by having to care for an adult son with bipolar disorder. Here, the increase in the Veteran's psychiatric symptoms became ascertainable more than one year prior to the receipt of the intent to file. In this regard, the Board observes that the appeal period before the Board begins the date VA received the Veteran's claim for an increased rating, plus the one-year look-back period. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). However, if the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(2). Accordingly, the Board awards a 50 percent rating from September 22, 2016. In all claims for increased ratings, the Veteran is presumed to be seeking the maximum possible evaluation. A.B. v. Brown, 6 Vet. App. 35 (1992). To that end, the Board considers whether ratings in excess of 50 percent for the Veteran's acquired psychiatric disorder are warranted during the period on appeal. The record does not reflect that the severity, frequency, and duration of the Veteran's symptoms more closely approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment due to the Veteran's service-connected acquired psychiatric disorder. The Veteran's acquired psychiatric disorder has not manifested symptoms associated with a 70 percent rating. For example, the record does not reflect 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 to the extent that the Veteran's symptoms most closely approximate occupational and social impairment with deficiencies in most areas. The February 2017 VA examination report did not reveal severe symptoms that more closely approximate occupational and social impairment with deficiencies in most areas. The report showed that the Veteran owned his home. The Veteran described a "good - alright" relationship with his wife and that his relationship with his children was similarly described as "alright". The examination report also noted long-term and stable employment with intermittent arguments with management that did not result in disciplinary actions. No contemporaneous mental health hospitalizations were noted. Mental health treatment outside of the VA was denied. The record showed Mirtazapine and Hydroxyzine prescriptions. A January 2017 VA medication management visit indicated that the Veteran reported some stress with his boss but was otherwise "doing fairly well". At that visit the Veteran denied worsening anxiety, panic attacks, depression, problems with sleep, suicidal or homicidal ideation, feelings of worthlessness, temper or aggression. The Veteran endorsed medication compliance and efficacy. A January 2020 VA progress note indicated that the Veteran denied hopelessness or worthlessness, that he denied depression and irritability, that he denied racing thoughts and anxiety, and he sleeps well. The Veteran continued his endorsement of medication compliance and efficacy. The Veteran's wife passed away in January 2019. A July 2020 VA progress note showed continued medication compliance and that the Veteran visits his son on weekends and keeps in touch regularly. The 2022 VA examination report showed occupational and social impairment with reduced reliability and productivity. The Veteran indicated that he had lunch with his son several times a week and that his other son "called" a couple of times a month. The Veteran reported that he was forced to retire because his supervisor was ageist. The Veteran reported stress during the last 6 months of employment but that the stress did not negatively impact his performance. The February 2017 and August 2022 VA examination reports both deny suicidal ideation. VA treatment notes from 2016 to 2022 consistently deny suicidal ideation. The February 2017 and August 2022 VA examination reports do not show symptoms of panic that would affect the ability to function independently. Though the Veteran has reported that he would get into "arguments with management", these episodes do not reveal that he has impaired impulse control with unprovoked irritability and periods of violence. Further, the record does not reflect severe psychosis, persistent delusions or hallucinations, or persistent danger of hurting himself or others, or other impairment to the extent that a finding of a more severe occupational or social impairment is supported by the record. In sum, the severity, frequency, and duration of the Veteran's acquired psychiatric disorder symptoms do not warrant a rating in excess of 50 percent. When the evidence is evenly balanced or approximately so, it is appropriate to apply the benefit of the doubt doctrine. Here, the evidence persuasively weighs against entitlement to a rating in excess of 50 percent; the benefit of the doubt doctrine is not applied. 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-782 (2012). A rating in excess of 50 percent for an acquired psychiatric disorder is not warranted. TDIU A claim for TDIU is considered part and parcel of the underlying claim before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2022 the Board raised the issue of TDIU because the Veteran contended that his acquired psychiatric disorder led him to being placed on extended sick leave from his job in May 2017 and his retirement in January 2018. The matter was remanded to the AOJ. Subsequent to the remand, the AOJ sent the Veteran the VA Form 8940. The Veteran did not return VA Form 8940 which could have provided the Board with more specific information regarding his work history and how his acquired psychiatric disability impacted his ability to obtain or maintain substantially gainful employment. The duty to assist is a two-way-street. Wood v. Derwinski, 1 Vet. App.190, 193 (1991). As the Veteran nor the representative has asserted that the Veteran did not receive the VA Form 8940, the Board will proceed with the adjudication of the claim. Entitlement to TDIU may be granted where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall 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). Currently, the Veteran is service connected at 50 percent for an acquired psychiatric disorder. The Veteran has no additional service-connected disabilities. The Veteran does not meet schedular requirements for a grant of entitlement to TDIU. However, even if, as here, a Veteran's disabilities fail to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the Board should consider whether to refer the claim to the Director of the Compensation Service for extra-schedular TDIU consideration under the special provisions of 38 C.F.R. § 4.16(b). Barringer v. Peake, 22 Vet. App. 242 (2008). Entitlement to an extra-schedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable due to service-connected disabilities. When denying an extra-schedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extra-schedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), and (2) that TDIU benefits are not warranted because the Veteran is not unemployable due to service-connected disabilities. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Here, the evidence shows that the Veteran retired from his position in January of 2018 after 38 years of employment. This occurred during the current period of appellate review. The Veteran contends that he was forced to "surrender his badge and ID" in May of 2017. At the August 2022 VA examination, the Veteran self-reported that it was his belief that he was "forced to retire" because he had a lot of arguments with a newly appointed supervisor who was an "ageist." At the February 2022 hearing before the Board the Veteran testified that he was forced into retirement. In his lay statements, he stated that he had no choice but to retire due to the stressful situations and that had he been able to handle his anxiety he would not have had to retire. With his initial 2016 claim for increase, the Veteran contended that his psychiatric symptoms manifest a lack of focus, occasional short term memory loss, and problems sleeping. During the February 2022 Board hearing the Veteran's representative indicated that the Veteran's memory loss, anxiety, and depression had worsened and that the Veteran himself does not recognize the changes due to his solitary lifestyle subsequent to his wife's death. At the time of the February 2017 examination, the Veteran was gainfully employed. Memory loss and sleep impairment were not identified as psychiatric symptoms. The February 2022 VA examination report showed occupational and social impairment with reduced reliability and productivity. In discussing his occupational and educational history, the Veteran denied problems with attention and concentration. Mild memory loss was noted as a symptom but impairment of short and long-term memory were not shown to be symptoms of the Veteran's acquired psychiatric disorder. The Veteran's speech was logical, and goal directed. Though the examiner indicated that sleep impairment and impairments in attention and concentration would limit efficacy on sedentary tasks and would place the Veteran and others at risk of injury on physical tasks, the evidence does not show that the occupational and social impairment due to lack of focus and sleep issues would preclude gainful employment. At the August 2022 VA examination, the Veteran's acquired psychiatric disorder was not found to produce occupational and social impairment with deficiencies in most areas nor was it found to produce total occupational and social impairment. The Veteran self-reported that his symptoms interfered with his ability to find and maintain gainful employment. The Veteran also reported that, during the last six months of his employment, he experienced stress but did not think that the stress negatively impacted his performance. Although the Veteran self-reported, during the August 2022 examination, that anxiety and stress contributed to his forced retirement, both the additional evidence of record and the August 2022 examination report itself contradicts this assertion. In both the Board hearing and the examination, the Veteran denies that his psychiatric symptoms prevented him from working. Rather, the Veteran contends that he had an unfortunate conflict with a new supervisor that precipitated his retirement after 38 years of employment and that perhaps his anxiety symptoms prevented him from more appropriately handling the situation. As noted, the record does not show that the acquired psychiatric symptoms led to his removal from this position. A July 2022 VAMC mental health progress note showed that the Veteran was "doing well". The note showed that the Veteran denied feelings of worsening anxiety, "hopeless or worthless", and that the Veteran denied suicidal ideation. Though the August 2022 VA examiner indicated that certain mental health symptoms would limit efficacy on sedentary tasks and prevent the safe operation of machinery, these attestations do not expressly declare that the Veteran is incapable of engaging in substantially gainful employment nor do the attestations show an inability to work in the role that the Veteran occupied for 38 years. The statements do not offer a reasonable possibility of showing that the Veteran is unemployable due to his service-connected disability. It is noted that at the Board hearing the Veteran testified that his psychiatrist suggested a part-time job and that a July 2022 VAMC mental health progress note shows that the Veteran is self-reflective about past job issues and that the Veteran is "thinking what he could have done differently when he was in conflict." The totality of the assembled evidence shows that the Veteran retired in 2018, after 38 years of employment, and that the Veteran's acquired psychiatric disorder is currently well-managed and would not prevent substantially gainful employment. Here, the evidence shows that the Veteran worked successfully for several decades. As indicated in the above discussion, the Board found that the Veteran's acquired psychiatric symptoms were consistently at the 50 percent rating for the entirety of the appeal period. As the Veteran indicated that the difficulties with his ability to work were specific to the supervisor and, given that his symptoms were consistent throughout the appeal period, the Board does not find it persuasive that he is unable to obtain or maintain substantially gainful employment. Rather, the evidence shows that the last few months of the Veteran's employment were not impacted solely by his acquired psychiatric symptoms but rather that he retired due to a specific personal conflict with a specific supervisor. The current evidence does not demonstrate a "reasonable possibility" that the Veteran is unemployable due to his service-connected disability such that referral for TDIU extra-schedular consideration to the Director of Compensation Service is warranted. It should be noted that the record includes conflicting evidence of when the Veteran retired. The February 2017 VA examination report indicates that the Veteran was employed. The August 2022 VA examination report and a June 2018 VAMC treatment note states that the Veteran retired in January of 2018. The February 2022 Board hearing transcript conveys that the Veteran retired in 2008. The Board finds that the Veteran's date of retirement is most likely 2018. However, regardless, TDIU is not warranted and any discrepancy in the record is deemed non-prejudicial to the Veteran. Continued on next page In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence is persuasively against the claim and the positive and negative evidence is not in approximate balance, the doctrine is not for application. 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-782 (2012). Entitlement to TDIU is not warranted. S. Sorathia Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.T. Graham 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.