Citation Nr: A25044729 Decision Date: 05/19/25 Archive Date: 05/19/25 DOCKET NO. 240708-457803 DATE: May 19, 2025 ORDER Prior to November 8, 2022, entitlement to an initial disability rating of 30 percent but no higher for an acquired psychiatric disorder is granted. From November 8, 2022, entitlement to a disability rating of 70 percent but no higher for an acquired psychiatric disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to November 8, 2022, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. From November 8, 2022, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 3. The Veteran was gainfully employed throughout the period on appeal. CONCLUSIONS OF LAW 1. Prior to November 8, 2022, the criteria for an initial disability rating of 30 percent but no higher for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9413. 2. From November 8, 2022, the criteria for a disability rating of 70 percent but no higher for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9413. 3. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2019 to May 2021. These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board has recharacterized the issue as an increased rating claim for an acquired psychiatric disorder because the record contains diagnoses of major depression, anxiety, and adjustment disorder in addition to the circadian rhythm sleep disorder for which the Veteran was originally granted service connection. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claims when the disabilities may have been more severe than at other times during the course of the claims on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). 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. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Prior to November 8, 2022, entitlement to an initial disability rating of 30 percent but no higher for an acquired psychiatric disorder is granted. 2. From November 8, 2022, entitlement to a disability rating of 70 percent but no higher for an acquired psychiatric disorder is granted. The Veteran seeks a higher initial rating for service-connected circadian rhythm sleep disorder, for which he has a 0 percent rating from May 14, 2021 to November 8, 2022, and a 50 percent rating from November 8, 2022 under DC 9413. The Veteran filed the initial claim for service connection in the VA Form 21-526EZ dated February 5, 2021, which the April 2021 rating granted with an effective date of May 14, 2021, the day after the Veteran separated from active service, and the Veteran has continuously pursued a higher initial rating since the rating decision on appeal dated May 10, 2024. Therefore, the period on review is from February 5, 2021, to May 10, 2024. The Board notes that the Veteran claimed that he was scheduled for a new rating examination to determine the severity of his mental health condition but that he was not able to attend the appointment. See VA Form 10182 of July 8, 2024. Under applicable law, when a Veteran without good cause fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be determined based upon the evidence of record. 38 C.F.R. § 3.655(b). No good cause has been conveyed by the Veteran for his failure to appear for the scheduled examinations. As such, the Board will proceed with the decision based on the evidence of record. Law 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 noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 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; or memory loss for names of close relatives, own occupation or own name. Evidence The March 2021 VA examiner noted that the Veteran had trouble falling and staying asleep and that he was living with his parents, with whom he got along well. The Veteran reported that he had a couple of friends. He reported that he was financially stable and that he had chronic sleep impairment. The examiner noted the Veteran was easily engaged, cooperative and forthcoming, and that he was within normal limits regarding appearance, behavior, attitude, level of consciousness, orientation, insight and judgment, speech and language, thought process and content, attention span, memory, and intellectual functioning. During the examination the Veteran convincingly denied suicidal/homicidal ideation or intent; and his mood and affect were largely euthymic. A May 2022 VAMC treatment record noted that the Veteran had been playing soccer with others. A November 2022 VAMC treatment record noted that the Veteran reported anxiety and depression, sleep problems, concentration problems due to lack of sleep, and he denied suicidal and homicidal ideation. The December 7, 2022 VA examination noted that the Veteran had only 1 or 2 friends and chose to not be social outside the home. The Veteran reported that he had missed drill time as a reservist due to his mental health concerns. The Veteran reported that he could not work in the civilian sector because he is not social. The Veteran was a fulltime college student and working toward a bachelor's degree in IT. The examiner noted symptoms of anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. A December 2022 VAMC treatment record, completed the day after the December 2022 VA examination, noted that the Veteran was in school for IT and working in customer support for 6 months, but had considered quitting his job to focus on school because he was overwhelmed. He described chronic social isolation, and he reported having 1 to 2 close friendships but was not in close contact due to distance. The examiner noted symptoms that were consistent with major depression, anxiety, and adjustment disorder. The Veteran reported very severe sleep problems. The Veteran was on time to the appointment and unaccompanied, dressed and groomed appropriately, no psychomotor agitation or impairment, had trouble maintaining eye contact initially, speech was audible and appropriate, oriented times 4, his memory was intact, he had concentration difficulties, his attitude was pleasant, open, and forthcoming, he had depressed mood, his thought processes were logical, linear, and goal-directed, he had no hallucinations, he had good insight and judgment, and intact impulse control. April 2024 VAMC treatment records noted that the Veteran reported anxiety, racing thoughts, fatigue, intermittent low mood in the context of ongoing stressors such as military transition, school, work concerns, insomnia, social isolation/awkwardness, and general thoughts of wondering if his racing thoughts would be relieved were he no longer alive, but he was quick to note that he has no intention or plan to harm himself and denied any history of suicide attempts or preparatory behavior. Analysis Prior to the VA examination dated December 7, 2022, the Veteran's psychiatric disorder was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, and chronic sleep impairment). Prior to December 7, 2022, the Veteran did not present with symptoms associated with a 50 percent rating. Additionally, the record shows that the Veteran was financially stable, he had a couple friends, played soccer with others, and got along well with his family. During the March 2021 VA examination, he was easily engaged, cooperative and forthcoming, within normal limits regarding appearance, behavior, attitude, level of consciousness, orientation, insight and judgment, speech and language, thought process and content, attention span, memory, and intellectual functioning; he convincingly denied suicidal/homicidal ideation or intent; and his mood and affect were largely euthymic. From December 7, 2022, the Veteran's psychiatric disorder was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, and chronic sleep impairment), 50 percent rating (disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships) and 70 percent rating (difficulty in adapting to stressful circumstances, including work or a work like setting, and suicidal ideation). The Veteran did not have symptoms associated with a 100 percent rating. The Veteran had unlisted symptoms such as racing thoughts and social isolation. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by higher ratings. See 38 C.F.R. § 4.126. Racing thoughts and social isolation are similar to anxiety and suspiciousness, which are contemplated by a 30 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. In April 2024, the Veteran explained that he wondered whether his racing thoughts would be relieved were he no longer alive but was quick to note that he had no intention or plan to harm himself, and he denied any history of suicide attempts or preparatory behavior. Additionally, suicidal ideation is contemplated by a 70 percent rating, which the Board has assigned for the period after December 7, 2022. Finally, from December 7, 2022, the record shows that the Veteran had a relatively high level of occupational and social functioning that does not correspond to a 100 percent rating. The Veteran had 1 or 2 close friendships, worked and went to college fulltime college, and although doing both felt overwhelming, the April 2024 VAMC treatment record indicated that the Veteran was still working, and the December 2022 VAMC treatment record noted that the Veteran was on time to the appointment and unaccompanied, dressed and groomed appropriately, had no psychomotor agitation or impairment, his speech was audible and appropriate, he was oriented times 4, his memory was intact, he had concentration difficulties, but his attitude was pleasant, open, and forthcoming, his thought processes were logical, linear, and goal-directed, he had no hallucinations, he had good insight and judgment, and intact impulse control. Conclusion In conclusion, the Board finds that after resolving reasonable doubt in the Veteran's favor, prior to November 8, 2022, an initial disability rating of 30 percent but no higher for an acquired psychiatric disorder is warranted, and from November 8, 2022, a disability rating of 70 percent but no higher for an acquired psychiatric disorder is warranted. As the evidence of record persuasively weighs against higher ratings, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). 3. Entitlement to a TDIU is denied. During the December 7, 2022 VA examination, the Veteran reported that he could not work in the civilian sector because he was not social. While the statement did not preclude his ability to work in the military, the Board finds that the Veteran has raised the issue of entitlement to a TDIU. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (per curiam) ("When entitlement to TDIU is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is part of the claim for benefits for the underlying disability). A TDIU may be assigned, where the schedular rating is less than total, where a 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). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). During the period on appeal, the Veteran had the following disabilities that are service connected: OSA (rated 50 percent from October 31, 2022); acquired psychiatric disorder (now rated 30 percent from May 14, 2021 to November 8, 2022 and now rated 70 percent from November 8, 2022); patellofemoral pain syndrome, right knee (rated 10 percent from May 14, 2021 to October 31, 2022 and 40 percent from October 31, 2022); migraines (rated 30 percent from November 8, 2022); right ankle strain (rated 10 percent from May 14, 2021); bilateral shin splints (rated 0 percent from May 14, 2021); and right groin pain (rated 0 percent from May 14, 2021). Therefore, from October 31, 2022, the Veteran met the schedular requirements for consideration of a TDIU (one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more) and prior to that date, referral on an extraschedular basis must be considered. The Board further notes that based on the above ruling, the Veteran's combined disability rating as of November 8, 2022 will be 100 percent. For the reasons that follow, the Board finds that throughout the period on appeal, a TDIU is not warranted either on a schedular basis or for referral on an extraschedular basis. During service, the Veteran worked as an armor crewman. See May 2021 DD Form 214. The December 2022 VA examination and December 2022 VAMC treatment record noted that the Veteran was in school fulltime pursuing a degree in IT and had been working in customer support for 6 months, and April 2024 VAMC treatment records noted that the Veteran had work concerns. Therefore, the record indicates that the Veteran was gainfully employed throughout the period on appeal and his service-connected disabilities did not preclude his ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. As the evidence of record persuasively weighs against entitlement to a TDIU or referral on an extraschedular basis, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, entitlement to a TDIU is denied. Paul R. Casey Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Shealy, 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.