PSYCHOSIS NOS

K. A. BANFIELD · 2022 · Case ID: 22059647

MIXED

Summary

The Veteran, who served from November 1973 to July 1974, appeals the denial of an increased rating for his psychiatric disability and entitlement to a Total Disability based on Individual Unemployability (TDIU) prior to September 8, 2021. The Board reviewed the Veteran's psychiatric disability, rated under Diagnostic Code 9432, considering symptoms such as difficulty with concentration, lethargy, nightmares, hypervigilance, paranoia, irritability, and social withdrawal. The Veteran testified that these symptoms negatively impact his ability to work and interact with others. The Board considered evidence from VA examinations in August 2014 and March 2017, as well as VA treatment records and a clinician's statement. While the Veteran's symptoms caused significant occupational and social impairment, the Board found the evidence did not support total impairment. The Board granted an initial rating of 70 percent for the psychiatric disability prior to September 8, 2021, resolving doubt in the Veteran's favor. However, the Board denied a higher rating, finding the evidence did not approximate total impairment due to the Veteran's ability to maintain some social connections, engage in limited activities, and manage finances. The Board also granted entitlement to TDIU prior to September 8, 2021, finding the Veteran's service-connected psychiatric disability, rated at 70 percent, rendered him unable to maintain gainful employment consistent with his education and occupational experience.

Rationale

Symptoms approximated occupational and social impairment with deficiencies in most areas.; Resolved doubt in Veteran's favor.; Symptoms included paranoia, aggression, irritability, and poor concentration.

Special Benefit

TDIU

Diagnostic Code

9432

Docket No.

17-27 141

Full Decision Text

Citation Nr: 22059647
Decision Date: 10/27/22 Archive Date: 10/27/22

DOCKET NO. 17-27 141
DATE: October 27, 2022

ORDER

An initial rating of 70 percent, and no higher, for bipolar disorder unspecified with mood congruent psychotic features, most recent episode manic with mild alcohol use disorder and mild cannabis use disorder (psychiatric disability) for the period on appeal prior to September 8, 2021, is granted.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 8, 2021, is granted.

FINDINGS OF FACT

1. The Board resolves all doubt in the Veteran's favor by finding that his psychiatric disability was manifested by occupational and social impairment, with deficiencies in most areas prior to September 8, 2021.

2. The Veteran's psychiatric disability has not been manifested by total occupational and social impairment.

3. The probative evidence of record demonstrates the Veteran is as likely as not unable to secure or follow substantially gainful employment due to service-connected disability.

CONCLUSIONS OF LAW

1. Prior to September 8, 2021, the criteria for an initial rating of 70 percent, and not higher, for the psychiatric disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9432 (2021).

2. From September 8, 2021, the criteria for an initial rating in excess of 70 percent for the psychiatric disability have not been met 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9432 (2021).

3. Prior to September 8, 2021, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16, 4.18, 4.19 (2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1973 to July 1974. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the proceeding is of record. The Board remanded these matters in May 2022 for further development.

A January 2022 rating decision granted entitlement to a TDIU, effective September 8, 2021. Thus, the issue of entitlement to a TDIU from September 8, 2021, is not before the Board.

1.-2. An initial rating in excess of 50 percent for the psychiatric disability prior to September 8, 2021, and in excess of 70 percent thereafter

Service connection for the Veteran's psychiatric disability was established in the April 2017 rating decision that is the subject of this appeal and assigned a 50 percent rating, effective August 2, 2013. A November 2021 rating decision increased the initial rating to 70 percent, effective September 8, 2021.

The Veteran's psychiatric disability is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9432. In relevant part, a 70 percent rating is warranted when there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms, such 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, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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
ability to function independently, appropriately, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behaviour; 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.

The symptoms listed in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). 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. A veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas. Id. at 118.

The Veteran seeks a disability rating higher than those currently assigned for his psychiatric disability. See March 2021 Board hearing transcript and April 2017, March 2022 and September 2022 statements. During the Board hearing, the Veteran testified that his psychiatric symptoms include difficulty with concentration and focus, lethargy, memory and sleep problems, nightmares, hypervigilance in that he is constantly looking out the window, impatience and withdrawal from others. The Veteran also described how his symptoms negatively impact his social and occupational functioning.

An initial rating in excess of 50 percent prior to September 8, 2021

After considering the evidence and resolving all doubt in favor of the Veteran, the Board finds that an initial rating of 70 percent is warranted for the psychiatric disability for the period on appeal prior to September 8, 2021, as the Veteran's symptoms more nearly approximate occupational and social impairment with deficiencies in most areas. This decision is based on evidence of symptoms that include obsessional rituals which interfere with routine activities, as evidenced by hypervigilance, paranoia ideation, suspiciousness, and unusual perceptual experiences including bodily illusions, described as constantly looking out the window, paranoia about his physical safety and being watched; impaired impulse control (unprovoked irritability and periods of violence), as evidenced by a history of personal, employment and legal problems related to uncontrolled anger, physical outbursts, irritability, suspiciousness, and imprisonment for manslaughter; an inability to establish and maintain effective relationships or adapt to stressful circumstances, evidence by social withdrawal, lack of intimate relationships or close friends, excessive social anxiety, mistrust, guarding and keeping distance from others, constricted affect, chronic sleep impairment, getting easily irritated and frustrated, and poor concentration and focus such that he needs to be redirected to remain on topic; and disturbance of mood and motivation, evidenced by depressed mood, anxiety, lethargy, paranoia, suspiciousness, psychomotor agitation and restlessness. See August 2014 and March 2017 VA examination reports, and VA treatment records. A May 2017 statement from a VA clinician further noted a history of recurrent interpersonal conflict, aggression and paranoia, and prison time for manslaughter; he also noted the Veteran has not worked in 12 years due to persistent paranoia and aggression towards others.

In addition, the March 2017 VA examiner opined that the Veteran is capable of performing physical and sedentary employment only if under close supervision or in a sheltered environment. Although the March 2017 VA examiner indicated the psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the August 2014 VA examiner indicated
lessness. See August 2014 and March 2017 VA examination reports, and VA treatment records. A May 2017 statement from a VA clinician further noted a history of recurrent interpersonal conflict, aggression and paranoia, and prison time for manslaughter; he also noted the Veteran has not worked in 12 years due to persistent paranoia and aggression towards others.

In addition, the March 2017 VA examiner opined that the Veteran is capable of performing physical and sedentary employment only if under close supervision or in a sheltered environment. Although the March 2017 VA examiner indicated the psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the August 2014 VA examiner indicated the disability causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. Thus, after resolving reasonable doubt in the Veteran's favor, the Board finds that an initial 70 percent rating for the psychiatric disability for the period on appeal prior to September 8, 2021, is warranted.

However, the Board finds that an initial rating higher than 70 percent for the psychiatric disability is not warranted prior to September 8, 2021, as the weight of the evidence does not more nearly approximate total social and occupational impairment. Although the evidence shows the Veteran isolates and has limitations in the areas of social interaction, adaptability and occupational functioning, it also shows that he related well with his siblings, with whom he maintains contact; has a few friends; maintains a small support network of VA veterans; attends VA treatment and individual counselling sessions; and enjoys some activities, such as playing video games, using the internet for education, exercising, and going to the park. See August 2014 and March 2017 VA examination reports and June 2013, June 2014, September 2015, September 2016, January 2017, March 2020, February 2021 and March 2021 VA treatment records.

While the August 2014 VA examiner indicated speech was intermittently illogical, obscure or irrelevant, the evidence does not indicate 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 name. Rather, the August 2014 VA and March 2017 VA examiners observed that the Veteran maintained adequate eye contact; and the March 2017 VA examiner further observed that the Veteran was oriented to person, place, time and situation; was casually dressed and had adequate grooming and hygiene; was talkative without pressurized verbalizations; thought process was rambling but cogent; memory and concentration were mildly impaired; and the Veteran denied hallucinations and suicidal and homicidal ideations. Both VA examiners indicated the Veteran is capable of managing his own financial affairs.

VA treatment records during this period show the Veteran was consistently well-groomed with good hygiene; cooperative and forthcoming; oriented to time, person, place and situation; had sufficient attention and concentration; speech was normal or slightly high in rate and volume; thought process was linear and goal-directed; insight and judgment were fair or good; cognition was intact; and the Veteran reported he managed the household finances and denied current suicidal or homicidal ideation. See, e.g., September 2013, December 2013, June 2014, July 2016, May 2017, April 2018, July 2019, April 2020 and May 2021 VA treatment records. Further, while the VA clinicians indicated the Veteran's thought process reflected vague paranoia and ideas of reference, it was without systematized delusional thinking, hallucinations or perceptual disturbances. Id. Thus, a rating in excess of 70 percent for the psychiatric disability is not warranted at any point prior to September 8, 2021.

In sum, after resolving reasonable doubt in favor of the Veteran, the Board finds a 70 percent rating, and no higher, for the psychiatric disability is warranted for the period on appeal prior to September 8, 2021.

An initial rating in excess of 70 percent from September 8, 2021

After reviewing the record, the Board finds that an initial rating higher than 70 percent for the psychiatric disability is not warranted from September 8, 2021, as the evidence of record does not more nearly approximate the criteria for a 100 percent rating, which requires total social and occupational impairment. This decision is based on symptoms of depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; impairment of short- and long-term memory such as retention of only highly learned material, while forgetting to complete tasks; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; obsessional rituals which interfere with routine activities; and impaired impulse control, such as unprovoked irritability with periods of violence. See September 2021 VA examination report.

Although the evidence shows the Veteran isolates, lives alone, has never married, and has limitations in social and occupational functioning due to his psychiatric symptoms, it does not suggest total social and occupational impairment. The September 2021 VA examiner indicated the psychiatric disability did not manifest in 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 name. Although the examiner observed that the Veteran exhibited a flat affect and hyperverbal speech, the Veteran was also cooperative and oriented in person, place, time and situation; his thought and communication patterns were coherent; and he was capable of managing his own financial affairs. The VA examiner characterized the psychiatric disability as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This level of impairment is reflected in a 70 percent disability rating.

VA treatment records during this period reflect findings consistent with, and no worse than, those reflected in the September 2021 VA examination report. The treatment records show the Veteran was consistently alert and oriented in person, place, time and situation; attention and concentration were sufficient; memory was intact; behavior was cooperative and open; speech was coherent and clear, or of high rate and rhythm but the Veteran could be interrupted; thought process was relevant, logical and goal-directed; thought content was within normal limits with no active suicidal or homicidal ideation or perceptual disturbances; insight was fair or good; and mood was appropriate for the topics discussed. See September 2021, December 2021, January 2022, February 2022, March 2022, May 2022 and July 2022 VA treatment records. These records also show the Veteran consistently denied hallucinations, delusions and suicidal or homicidal ideation, and the psychiatric disability was stable. Id.

Ultimately, it is the impact on functioning that results from the symptomatology that dictates the evaluation to be assigned. See Vazquez-Claudio, 713 F.3d at 118. In this case, the record shows that the Veteran's psychiatric symptoms, or those of similar severity, frequency and duration, more closely approximate occupational and social impairment with deficiencies in most areas, rather than total occupational or social impairment. These symptoms are compensated adequately by the 70 percent rating currently assigned for the psychiatric disability. See Id.

The Board has reviewed and considered the reported symptoms and lay statements. While the Veteran is competent to report observable symptoms, the Board finds that his observed symptoms are consistent with a 70 percent rating and no higher. Further, the Board finds the medical evidence in this case is more probative as to the level of impairment than the lay statements.

Finally, the medical evidence indicates that the Veteran has been using prescribed psychiatric medication for many years. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Regardless, even without considering the relief afforded by the medication, the record does not show total occupational and social impairment, such that a higher rating would be warranted. See 38 C.F.R. §§ 4.130, Diagnostic Code 9432.

In sum, the evidence weighs against assigning an initial rating in excess of 70 percent from September 8, 2021, and the claim for a higher rating is denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt
, the medical evidence indicates that the Veteran has been using prescribed psychiatric medication for many years. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Regardless, even without considering the relief afforded by the medication, the record does not show total occupational and social impairment, such that a higher rating would be warranted. See 38 C.F.R. §§ 4.130, Diagnostic Code 9432.

In sum, the evidence weighs against assigning an initial rating in excess of 70 percent from September 8, 2021, and the claim for a higher rating is denied. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. Entitlement to a TDIU prior to September 8, 2021

The Veteran seeks entitlement to a TDIU due to service-connected disabilities for the period of the claim prior to September 8, 2021.

VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.

A total disability rating may be assigned where the schedular rating is less than total, when the person 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, this disability shall be ratable at 60 percent or more, or 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).

As discussed above, the Board herein has granted an initial rating of 70 percent for the psychiatric disability prior to September 8, 2021. Thus, the Veteran meets the schedular criteria for a TDIU from August 12, 2013, based on his service-connected psychiatric disability.

The Veteran testified in March 2021 that his psychiatric disability prevents him from working due to chronic sleep impairment and use of psychotropic medication, which causes lethargy, drowsiness and poor concentration/focus and that his symptoms make it difficult to perform work duties, remember specific work tasks and operate heavy equipment safely. He asserted that his paranoia, hypervigilance, lack of impulse control and social withdrawal negatively impact his ability to interact with coworkers. He reported that his past occupations included construction, operating a forklift in a warehouse and driving a truck. He asserted he has not worked part-time or full-time or done volunteer work during the course of appeal.

In VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) received in March 2014, the Veteran reported that he is unable to secure or follow substantially gainful employment due to his psychiatric disability and that he last worked in April 2005. He noted he held 5 different jobs between September 2001 and April 2005 in part-time labor positions, including day laborer, construction grading, truck driver and custodian. He indicated that his annual income in his last position was $7,200. In VA Form 21-8940 received in September 2021, the Veteran reported that he became too disabled to work in July 2005 and left his last job due to his psychiatric disability and chronic insomnia. Employment information obtained from a prior employer in June 2014 indicates the Veteran earned $18,000 as a custodian, last worked in that position in February 2003, and left the position because he was terminated. VA's attempts to obtain employment information from the Veteran's other employer were not successful. The record indicates that the highest education attained by the Veteran is one year of college, and no additional education or training is indicated.

The August 2014 VA examiner opined that the Veteran's psychiatric disorder
Form 21-8940 received in September 2021, the Veteran reported that he became too disabled to work in July 2005 and left his last job due to his psychiatric disability and chronic insomnia. Employment information obtained from a prior employer in June 2014 indicates the Veteran earned $18,000 as a custodian, last worked in that position in February 2003, and left the position because he was terminated. VA's attempts to obtain employment information from the Veteran's other employer were not successful. The record indicates that the highest education attained by the Veteran is one year of college, and no additional education or training is indicated.

The August 2014 VA examiner opined that the Veteran's psychiatric disorder causes occupational and social impairment with deficiencies in most areas and remarked that the Veteran is capable of physical and sedentary employment provided he works in a sheltered workshop or in close supervision.

The medical evidence of record prior to September 8, 2021 shows a history of recurrent interpersonal conflict, employment and legal problems and notes symptoms of depressed mood; lethargy; excessive social anxiety; constricted affect; chronic sleep impairment; poor concentration and focus; hypervigilance; paranoia ideation; psychomotor agitation; suspiciousness; impaired impulse control; irritability, aggression, uncontrolled anger and physical outbursts; inability to establish and maintain effective relationships or adapt to stressful circumstances; and disturbance of mood and motivation. See August 2014 and March 2017 VA examination reports, May 2017 statement provided by a VA clinician, and VA treatment records. The May 2017 VA clinician further noted the Veteran has not worked in 12 years due to persistent paranoia and aggression towards others. The record also shows the Veteran performed physically demanding work throughout his career and suggests he lacks transferrable skills needed for sedentary employment.

Thus, after reviewing the record and resolving all doubt in favor of the Veteran, the Board finds that the service-connected psychiatric disability as likely as not renders the Veteran unable to maintain gainful employment consistent with his education and occupational experience. Accordingly, entitlement to a TDIU due to service-connected disability is warranted for the period on appeal prior to September 8, 2021. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

K. A. BANFIELD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. C. Birder

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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