MENTAL DISORDERS

BARBARA B. COPELAND · 2019 · Case ID: 19159244

MIXED

Summary

The veteran, who served in the Navy from August 1961 to August 1965, appeals the Board of Veterans' Appeals (Board) decision regarding his service-connected "other specified trauma-related disorder." The appeal concerns staged ratings for different periods. For the period prior to November 12, 2015, the Board granted an initial rating of 50 percent. For the period from November 12, 2015, to May 9, 2016, the Board denied an increased rating beyond 50 percent. For the period from May 10, 2016, forward, the Board granted a 70 percent rating. The Board based these ratings on the frequency, severity, and duration of the veteran's psychiatric symptoms, referencing Diagnostic Code 9413. VA treatment records from 2012-2014 showed depression, sleep disturbance, recurring nightmares, suicidal thoughts in the past, lack of focus, panic attacks, and lethargy. A September 2014 VA examination diagnosed "other specified trauma-related disorder" and noted occupational and social impairment with occasional decrease in work efficiency, but satisfactory general functioning. A September 2015 VA examination noted continued depression, anxiety, sleep impairment, mild memory loss, feelings of hopelessness, difficulty adapting to stress, and hypervigilance. A private May 2016 evaluation reported severe depression, anxiety, social isolation, sleep disturbance, short-term memory impairment, and suicidal ideation. The Board found the 50 percent rating appropriate prior to November 12, 2015, based on symptoms approximating that level. For the period from May 10, 2016, a 70 percent rating was granted due to symptoms including severe depression, anxiety, social isolation, and suicidal ideation, though not meeting criteria for 100 percent. The issue of entitlement to TDIU was remanded for further development, including obtaining a TDIU medical opinion and appropriate notice to the veteran.

Rationale

Staged ratings applied for different periods.; Symptoms of depression, anxiety, sleep disturbance, memory loss, and social/occupational impairment considered.; 50% rating prior to Nov 12, 2015, based on reduced reliability/productivity.; 70% rating from May 10, 2016, based on deficiencies in most areas.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

15-17 353

Full Decision Text

Citation Nr: 19159244
Decision Date: 08/01/19 Archive Date: 07/31/19

DOCKET NO. 15-17 353
DATE: August 1, 2019

ORDER

For the period prior to November 12, 2015, an initial rating of 50 percent, but no higher, for service-connected other specified trauma-related disorder is granted.

For the period from November 12, 2015, to May 9, 2016, an initial rating in excess of 50 percent for service-connected other specified trauma-related disorder is denied.

For the period from May 10, 2016, an initial rating of 70 percent, but no higher, for service-connected other specified trauma-related disorder is granted.

REMANDED

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded.

FINDINGS OF FACT

1. For the period prior to November 12, 2015, the Veteran’s service-connected other specified trauma-related disorder was manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas were not shown.

2. For the period from November 12, 2015, to May 9, 2016, the Veteran’s service-connected other specified trauma-related disorder was manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity; symptoms productive of occupational and social impairment with deficiencies in most areas were not shown.

3. For the period from May 10, 2016, the Veteran’s service-connected other specified trauma-related disorder has been manifested by symptoms productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood; symptoms productive of total occupational and social impairment have not been shown.

CONCLUSIONS OF LAW

1. For the period prior to November 12, 2015, the criteria for a rating of 50 percent, but no higher, for the Veteran’s service-connected other specified trauma-related disorder have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9413 (2018).

2. For the period from November 12, 2015, to May 9, 2016, the criteria for a rating in excess of 50 percent for the Veteran’s service-connected other specified trauma-related disorder have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9413 (2018).

3. For the period from May 10, 2016, the criteria for a rating of 70 percent, but no higher, for the Veteran’s service-connected other specified trauma-related disorder have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9413 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active military service in the Navy from August 1961 to August 1965.

This appeal comes to the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota.

In November 2015, the Veteran and his wife testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. Following the hearing, the Veteran submitted a private May 2016 examination report. Notwithstanding that a waiver is not necessary for Board consideration in this instance, given the May 2015 receipt date of the Veteran’s substantive appeal, the Veteran did submit a waiver of RO consideration of that evidence. See 38 38 U.S.C. § 7105(e)(1), (2) (2012); 38 C.F.R. § 20.1304 (2018).

In April 2018, the Board denied the issue of entitlement to an initial rating in excess of 30 percent prior to November 12, 2015, for his service-connected other specified trauma-related disorder. In that same decision, the Board granted an initial rating of 50 percent from November 12, 2015, for the Veteran’s service-connected other specified trauma-related disorder. Subsequently, the Veteran appealed the part of the April 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a March 2019 Joint Motion for Partial Remand (JMPR), the Court vacated the part of the April 2018 Board decision that denied an increased rating prior to November 12, 2015, and in excess of 50 percent from November 12, 2015, and remanded the case for further development consistent with the terms therein.

In July 2019, the Veteran’s representative argued that the issue of entitlement to a TDIU had been raised by the record. The Court has held that a claim for TDIU is part of an increased rating claim when such is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Dalton v. Nicholson, 21 Vet. App. 23, 33 (2007). In light of Rice, the issue of entitlement to TDIU has been raised by the record and is within the jurisdiction of the Board.

1. Entitlement an initial rating in excess of 30 percent prior to November 12, 2015, for service-connected other specified trauma-related disorder.

2. Entitlement to an initial rating in excess of 50 percent from November 12, 2015, for service-connected other specified trauma-related disorder.

Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2018).

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a) (2018). When 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 (2018).

Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999).

Currently, the Veteran’s service-connected psychiatric disability is assigned an evaluation of 30 percent prior to November 12, 2015, under 38 C.F.R. § 4.130, Diagnostic Code 9413. Under these criteria, a 30 percent rating is warranted where the psychiatric disability produces 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 conversational normal). 38 C.F.R. § 4.130, Diagnostic Code 9413 (2018).

A 50 percent rating is warranted where the psychiatric disability produces 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 where the psychiatric disability produces occupational and social impairment, with deficiencies in most areas, such
.R. § 4.130, Diagnostic Code 9413 (2018).

A 70 percent rating is warranted where the psychiatric disability produces 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); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted where the psychiatric disability results in 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 or own name. Id.

Evaluation under § 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, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, 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. 38 C.F.R. § 4.21 (2018); Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Id.

VA treatment records dated from January 2012 forward reflect treatment for mental health complaints. The Veteran took medications for his symptoms. Records throughout 2012 show treatment for depression and sleep disturbance that included recurring nightmares. In March 2012, he reported having suicidal thoughts in the past but not “for many years.” His mental health symptoms included lack of focus and concentration. He had “spells” wherein he suffered from chest pain, sweats, palpitations, and full body tremors. The Veteran reported feeling depressed 4 out of 7 days, with significant symptoms of lethargy, hopelessness, helplessness, poor concentration, low energy, anhedonia, and poor appetite. The Veteran denied current suicidal intention. He took medications for his symptoms. In December 2012, his sleep problems continued, and his condition was described as stable. He continued with his medications. In November 2014, the Veteran admitted to depression, but did not admit to having suicidal ideation or homicidal ideation.

Private medical records to include records provided by the Social Security Administration (SSA) dated from 2012 through 2014 show that the Veteran’s medical history included depression and sleep problems. He was essentially being treated for other conditions.

When examined by VA in September 2014, the examiner noted that the Veteran exhibited significant reexperiencing, avoidance, and hypervigilance symptomatology. The diagnosis was other specified trauma-related disorder. He did not meet the criteria for posttraumatic stress disorder (PTSD). Although he had periods of low mood, he maintained a good relationship with his family and got some enjoyment out of a variety of activities. When asked to check the statement that best summarized the Veteran’s level of occupational and social impairment, the examiner noted impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. His sleep disturbance problems continued as did his anxiety. On physical examination, he was adequately groomed. He was fully oriented, and his memory and attention were not formally assessed but appeared within normal limits. Thought content was free of suicidal and homicidal ideation. The Veteran was pleasant and cooperative for the interview. His mood was mildly anxious, but his affect was expressive and congruent with the conversation. He was capable of managing his own funds.

An additional VA examination was conducted in September 2015. The VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. He had been married for 49 years and had “OK” relationships with his adult sons. He had no close friends. He had been retired since 2000 after working with the same company for approximately 30 years. His symptoms continued to include depression, anxiety, and chronic sleep impairment. Also noted were mild memory loss, and feelings of hopelessness, guilt, and worthlessness. He had low self-esteem. He also had difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran reported hypervigilance in crowds. His memory and concentration were not good because when he worked on something, he had to have instructions, or he could not do it. On examination, he was alert and well oriented, but he endorsed a depressed mood. However, he denied suicidal ideation. His energy levels were reduced. He had recurrent panic attacks and feeling of irritability. His memory and concentration were not good.

The Veteran and his wife provided testimony in support of his claim at a videoconference hearing on November 12, 2015. At that time, the Veteran’s wife related that his ability to function had decreased. Specifically, she noted that on a weekly basis, he had “meltdowns” where he was not able to function. He did not even eat during these periods. Essentially, he just slept for approximately 48 hours. The Veteran continued to report sleep disturbance. He described social isolation, difficulty in completing projects, and lack of trust of others. He also indicated continued treatment. Specifically, he took medication prescribed by a VA physician who he saw about every six months. He also was treated by a private physician.

A private May 10, 2016, mental evaluation report reflects numerous medications for the Veteran’s mental health symptoms. He sometimes experienced “shaking episodes” related to nervousness. He had not had any social activity because his anxiety and nervousness increased when he as around other people. He had severe symptoms of clinical depression. His social isolation continued as did his sleep disturbance. He reported some short term memory impairment. On mental status examination, he was oriented and denied having a thought disorder. The Veteran reported that he spent time reading and playing solitaire. He admitted that more than half the days in a week he had little interest or pleasure in doing things, he felt bad about himself or like a failure, and he had thoughts that he would be better off dead or of hurting himself in some way. He explained that he had not admitted that he had suicidal thoughts during his previous examination as his wife was in the room when evaluated. The psychologist further noted that the Veteran’s personal hygiene appeared to be adequate and that he was able to communicate effectively with the examiner.

After reviewing the foregoing evidence, the Board finds that a rating of 50 percent is warranted for the period prior to November 12, 2015
The Veteran reported that he spent time reading and playing solitaire. He admitted that more than half the days in a week he had little interest or pleasure in doing things, he felt bad about himself or like a failure, and he had thoughts that he would be better off dead or of hurting himself in some way. He explained that he had not admitted that he had suicidal thoughts during his previous examination as his wife was in the room when evaluated. The psychologist further noted that the Veteran’s personal hygiene appeared to be adequate and that he was able to communicate effectively with the examiner.

After reviewing the foregoing evidence, the Board finds that a rating of 50 percent is warranted for the period prior to November 12, 2015. The Veteran’s service-connected psychiatric disorder has been characterized by symptoms of depressed mood, social and occupational impairment, sleep disturbance, nightmares, panic attacks, feelings of irritability, and mild memory loss. The evidence shows occupational and social impairment with reduced reliability and productivity. The September 2015 VA examiner noted that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting, and mild memory loss. The Veteran reported hypervigilance in crowds. His memory and concentration were not good because when he worked on something, he had to have instructions, or he could not do it. The Veteran also did not have any close friends, despite that fact that he was married. Based on the foregoing, the Veteran’s evaluation for his service-connected other specified trauma-related disorder most closely approximates the 50 percent rating.

A 70 percent evaluation, or higher, is not for assignment for the period on appeal prior to November 12, 2015, and from November 12, 2015, to May 9, 2016. The evidence of record does not support symptoms of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board acknowledges the fact that the Veteran has had suicidal thoughts in the past. In a March 2012 VA treatment record, the Veteran reported having suicidal thoughts in the past but not “for many years.” In a November 2014 VA treatment record, the Veteran admitted to depression, but did not admit to having suicidal ideation or homicidal ideation. In a September 2014 VA examination, the Veteran denied suicidal ideation. Furthermore, although the Veteran had periods of low mood, he maintained a good relationship with his family and got some enjoyment out of a variety of activities. The Veteran did not have any personal hygiene issues. He also did not have gross impairment of thought process or seem to be in persistent danger of hurting himself or others. It is also acknowledged that the September 2015 VA examiner found that the Veteran had difficulty in adapting to stressful circumstances, including work or a worklike setting. This symptom is listed under the rating criteria for a 70 percent evaluation. Nevertheless, the Board has considered the evidence as a whole and for the period prior to November 12, 2015, finds that the frequency, severity and duration of psychiatric symptoms approximates no higher than a 50 percent evaluation.

However, a 70 percent evaluation is warranted for the period on appeal from May 10, 2016 (date of private psychological evaluation). The evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. In a private May 10, 2016, mental evaluation, the Veteran reported symptoms of severe depression. The Veteran had episodes of shaking due to his nervousness around crowds of people. He did not participate in any social activities due to his anxiety and nervousness. He admitted that more than half the days in a week he had little interest or pleasure in doing things, he felt bad about himself or like a failure, and he had thoughts that he would be better off dead or of hurting himself in some way. Based on the foregoing, the Veteran’s evaluation for his service-connected other specified trauma-related disorder most closely approximates the 70 percent rating for the appeal period from May 10, 2016.

However, for the appeal period from May 10, 2016, a rating of 100 percent is not warranted. Although the Veteran had no social activity, he still maintained a relationship with his wife. Despite the fact that the Veteran had suicidal ideation, there was no indication that he actually attempted suicide; therefore, he was not in persistent danger of hurting himself or others. Furthermore, the Veteran maintained his personal hygiene and was able to engage in activities, such as reading and solitaire. As such, it has not been shown that the Veteran has had gross impairment in thought processes or communication.
-related disorder most closely approximates the 70 percent rating for the appeal period from May 10, 2016.

However, for the appeal period from May 10, 2016, a rating of 100 percent is not warranted. Although the Veteran had no social activity, he still maintained a relationship with his wife. Despite the fact that the Veteran had suicidal ideation, there was no indication that he actually attempted suicide; therefore, he was not in persistent danger of hurting himself or others. Furthermore, the Veteran maintained his personal hygiene and was able to engage in activities, such as reading and solitaire. As such, it has not been shown that the Veteran has had gross impairment in thought processes or communication. There has been no indication in the record that he has had persistent delusions or hallucinations or exhibited grossly inappropriate behavior. Accordingly, a rating of 100 percent is not for assignment for the appeal period from May 10, 2016.

In summary, when considering all the other symptoms of record, the Board finds that the Veteran’s symptoms most closely approximate a 50 percent evaluation until May 9, 2016, following which a 70 percent evaluation is assigned. See 38 C.F.R. § 4.130, Diagnostic Code 9413 (2018).

REASONS FOR REMAND

Entitlement to a TDIU is remanded.

As noted above, the issue of entitlement to a TDIU has been raised and is part of the Veteran’s appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that a remand is necessary to obtain a TDIU opinion regarding the impact that the Veteran’s service-connected disabilities have on his occupational and social functioning. Also, the Veteran should be provided appropriate notice of what is required to substantiate a claim for TDIU, and invited to submit VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.

The matter is REMANDED for the following action:

1. Obtain any outstanding VA treatment or private treatment record and associate with the claims file.

2. Complete any appropriate notice and assistance for the claim for TDIU. Request that the Veteran complete and submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability.

3. Obtain a TDIU medical opinion addressing the impact of all of the Veteran’s service-connected disabilities. The Veteran is currently service connected for bilateral sensorineural hearing loss, other specified trauma-related disorder, and tinnitus. The VA examiner should comment upon the Veteran’s ability to function in an occupational environment with respect to all of his service-connected disabilities. Age and nonservice-connected disabilities should not be considered or discussed.

A rationale for all requested conclusions must be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in the medical community at large.

BARBARA B. COPELAND

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD J. Crawford, 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.

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