LUMBAR SPINE DISABILITY

T. RAYMOND · 2024 · Case ID: 24019848

GRANTED

Summary

The Veteran, an Army Veteran who served from July 1976 to November 1976, appeals the denial of an increased rating for his acquired psychiatric disorder and the grant of TDIU. The Veteran's acquired psychiatric disorder, diagnosed as major depressive disorder with psychotic features, has been associated with symptoms including anxiety, depression, insomnia, irritability, suicidal ideation, and impaired social and occupational functioning. Evidence from VA treatment records and a private examination detailed significant symptoms such as persistent sadness, low energy, isolation, difficulty concentrating, and intermittent suicidal ideation, leading to deficiencies in most areas of functioning. The Board found that while the Veteran experienced intermittent suicidal ideation and sought treatment, the symptoms did not reach the level of total occupational and social impairment required for a 100 percent rating, but did warrant a 70 percent rating. The Board also granted TDIU, finding that the Veteran's combined service-connected disabilities, including the acquired psychiatric disorder and lumbar spine disability, precluded him from securing or following a substantially gainful occupation. The Veteran's limited work history, educational background, and the severity of his psychiatric and physical symptoms supported this finding.

Rationale

Appellant withdrew appeal for increased rating.; Board lacks jurisdiction to review withdrawn issue.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

20-78 928A

Full Decision Text

Citation Nr: 24019848
Decision Date: 05/13/24 Archive Date: 05/13/24

DOCKET NO. 20-78 928A
DATE: May 13, 2024

ORDER

Entitlement to an initial rating in excess of myositis right lumbar paravertebral muscles, chronic (hereinafter "lumbar spine disability") has been withdrawn.

Entitlement to an initial rating of 70 percent, but no higher, for major depressive disorder (MDD) (previously characterized as an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and MDD associated with service-connected lumbar spine disability) (hereinafter "an acquired psychiatric disorder") is granted.

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

FINDINGS OF FACT

1. In May 2022, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of the appeal for entitlement to an initial rating in excess of 10 percent for lumbar spine disability is requested.

2. The Veteran's service-connected acquired psychiatric disorder has been manifested by no more than occupational and social impairment with deficiencies in most areas, such as work, social relations, and mood.

3. The Veteran's service-connected disabilities preclude him from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of entitlement to an initial rating in excess of 10 percent for lumbar spine disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for entitlement to an initial rating of 70 percent, but no higher, for the service-connected acquired psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434.

3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 1976 to November 1976.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Withdrawal

Entitlement to an initial rating in excess of 10 percent for lumbar spine disability.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or an authorized representative. Id.

Specifically, in May 2022, the Veteran, through his authorized representative, submitted a correspondence withdrawing the increased rating lumbar spine issue on appeal. See May 2022 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In the present case, the appellant, through his authorized representative has withdrawn this issue on appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to an initial rating in excess of 10 percent for lumbar spine disability and it is dismissed.

Increased Rating

Entitlement to an initial rating in excess of 50 percent for an acquired psychiatric disorder.

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. Id.

The Veteran's service-connected acquired psychiatric disorder is rated under Diagnostic Code 9434. 38 C.F
psychiatric disorder.

The Veteran's service-connected acquired psychiatric disorder is rated under Diagnostic Code 9434. 38 C.F.R. § 4.130. Diagnostic Codes 9201 through 9440 are rated using the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, 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, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Id.

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); inability to establish and maintain effective relationships. Id.

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 hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id.

The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117.

The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14, 308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 22426 (2018).

Factual Background

In a 2012 letter from the Veteran's readjustment counselor, the provider noted the Veteran was first seen in the Vet Center in March 2012 for initial interview and has continuously attending individual and group interventions treatment for PTSD. The provider noted the center working with the Veteran on his various issues, to include anxiety, anger, avoidance, intrusive thoughts, flashbacks, depression, PTSD, and other mental health symptoms and that as a result, he is not able to function in everyday life activities, including ability to work, as he was able to perform before his experiences in the military. See October 2012 Third Party Correspondence.

VA treatment records from May 2012 to August 2013 noted the Veteran was alert, and oriented, generally had normal speech in rate and rhythm with intermittent pressured
, the provider noted the Veteran was first seen in the Vet Center in March 2012 for initial interview and has continuously attending individual and group interventions treatment for PTSD. The provider noted the center working with the Veteran on his various issues, to include anxiety, anger, avoidance, intrusive thoughts, flashbacks, depression, PTSD, and other mental health symptoms and that as a result, he is not able to function in everyday life activities, including ability to work, as he was able to perform before his experiences in the military. See October 2012 Third Party Correspondence.

VA treatment records from May 2012 to August 2013 noted the Veteran was alert, and oriented, generally had normal speech in rate and rhythm with intermittent pressured/pushed speech, had depressed mood, angry mood, or anxious mood with congruent affect, generally had normal and coherent thought processes and association, had limited insight, had impaired or impulsive judgment, had no unusual thought content, denied suicidal/homicidal ideation, was not a risk to self or others, and his grooming was generally noted as appropriate, sometimes disheveled. Regarding symptoms, the Veteran reported experiencing anxiety, anger, irritability, difficulty tolerating people, insomnia, crying spells, anhedonia, helplessness, hopelessness, and ongoing sleep impairment. See October 2012 CAPRI and January 2018 CAPRI.

In a December 2013 VA treatment record, the Veteran reported that over the last month, he had been increasing the idea to finish his life, had been feeling worthless, hopeless, and helpless, and had a plan to hang himself. He reported inability to cope with everyday life activities, that he was always depressed, had low energy, and he reported hearing voices telling him to kill himself. On mental status examination, the Veteran was noted as alert, attentive, and oriented, was cooperative and reasonable, was disheveled, had normal speech in rate and rhythm, had intact language, had dysphoric and depressed mood with a wide range of affect, had normal and coherent thought processes and association, had limited insight, had severely impaired judgement, and had impaired recent memory. The reviewing provider indicated the Veteran would be admitted into psychiatric inpatient. See January 2018 CAPRI.

A subsequent VA treatment record in December 2013 indicated the Veteran had been discharged from psychiatric inpatient unit 10 days after admission. At the post-discharge follow up appointment, the Veteran reported feeling sad and frustrated, and experiencing loss of interest in activities, low energy levels, and feelings of worthlessness and hopelessness. He denied ideas of self-harm or harm to others. The Veteran reported having nightmares associated with an in-service traumatic event, sometimes reliving the event, increased anxiety levels and intrusive memories of the event, avoidance of stimuli associated with the event, and feeling socially isolated. He reported occasionally seeing shadows but denied feeling distressed about it. He also denied hearing things others cannot. He denied symptoms suggestive of mania or hypomania. The record noted the Veteran was single, had adult children and grandchildren, lived alone, and did not have close friends. He reported having a poor relationship with his brothers and sisters. See id.

A May 2014 VA treatment record noted that in the initial psychology evaluation for admission to the Interdisciplinary Pain Rehabilitation Program, the Veteran reported living alone, had little support, was disabled and previously worked as an auto mechanic, completed 12 years of education, and had been a widower for the past 20+ years. Since the in-service traumatic event, the Veteran reported experiencing the following symptoms: sadness, anger, guilt, anxiety, irritability, frustration, physical aggression, isolation, flashbacks, nightmares, insomnia, and gain in appetite. The reviewing provider noted that the Veteran was cooperative, his motor activity was within normal limits, he had coherent, relevant, and logical thought processes, had normal thought content, had depressed mood with congruent affect, was oriented in all spheres, had fair attention, judgment, and insight, had fair to poor memory, and denied ideas or intent of self-harm and harm to others. The Veteran reported hearing voices and seeing shadows. The Veteran indicated that he tried to isolate himself from everybody and was often crying but that he had a friend who accompanied him to places. He indicated his children wanted to associate with him, but he kept his distance. Regarding psychosocial problems, the reviewing provider noted the Veteran had poor adjustment to limitations, his mood/anxiety interfered with daily functioning and his judgment/memory related problems affected daily performance. See January 2018 CAPRI.

A June 2014 VA treatment record noted the Veteran continued to be depressed, had low energy, and had poor concentration. He denied hearing voices, denied any other perceptual disturbances, and denied
-harm and harm to others. The Veteran reported hearing voices and seeing shadows. The Veteran indicated that he tried to isolate himself from everybody and was often crying but that he had a friend who accompanied him to places. He indicated his children wanted to associate with him, but he kept his distance. Regarding psychosocial problems, the reviewing provider noted the Veteran had poor adjustment to limitations, his mood/anxiety interfered with daily functioning and his judgment/memory related problems affected daily performance. See January 2018 CAPRI.

A June 2014 VA treatment record noted the Veteran continued to be depressed, had low energy, and had poor concentration. He denied hearing voices, denied any other perceptual disturbances, and denied suicidal/homicidal ideation, intent, or plans. He stated that overall, he had been receiving support from his son. On mental status examination, the reviewing provider noted the Veteran was alert, attentive, and oriented, was cooperative and reasonable, had appropriate grooming, had normal rate and rhythm in speech, had intact language, had normal and coherent thought processes and association, denied hallucinations or illusions, had limited insight, had impaired judgment, and had impaired recent memory. Mood was noted as depressed and affect was congruent with mood. No significant risk to self or others was noted. See id.

VA treatment records from July 2014 to September 2016 noted the Veteran was alert and oriented, was relevant, logical, and coherent, had normal speech in rate and rhythm, had fair to limited insight, had fair to impaired judgment and recent memory, was irritable, was intermittently disheveled in appearance, had anxious and/or depressed but stable mood with congruent affect, denied idea or intention of self-harm or harm to others, denied perceptual disturbances, had low energy and self-esteem, spent most of the day in his house, seldom went out, and indicated his family was supportive. See January 2020 CAPRI.

An October 2016 VA treatment record noted the Veteran denied suicidal/homicidal ideation, to include intent or plans, that he fought thoughts of death, was depressed but not suicidal. He indicated that he spoke to his son almost every day, was feeling sad for more days than others, had low energy, and reported hearing voices calling his name. Reported symptoms included anxiety, nervousness, sadness, irritability, anhedonia, crying spells, helplessness, anger, memory loss, poor concentration, and decreased problem-solving capacity. The reviewing provider recommended partial day admission for melancholia. See id.

An October 2016 discharge summary from San Juan Capestrano System Partial Hospitalization Program noted the Veteran admitted for 11 days. See June 2020 Medical Treatment Record - Government Facility.

A November 2016 VA treatment record noted the Veteran's report that he received day hospital care with good results and was less depressed. He reported years of feeling sad but denied suicidal/homicidal ideation, intent, or plans. See January 2020 CAPRI.

VA treatment records from December 2016 to April 2018 noted the Veteran's reports that he had no energy, was sad, denied hearing voices, intermittently saw shadows moving in the house but was not afraid, emphatically denied suicidal/homicidal ideation, intent, or plans, had sleep impairment, and reported his son visited him. The records noted the Veteran was oriented, cooperative, and reasonable, had normal speech in rate and rhythm, had fair to impaired insight and judgment, had impaired recent memory, was appropriately groomed, was tearful and emotional when speaking about his physical and emotional issues, had dysphoric mood with constricted affect, and tended to isolate himself which diminished his relationship with his children but continued to receive support from his son. See id.

An August 2017 VA treatment record noted the Veteran had been living alone for the last three years in a house he rented in Puerto Rico. He indicated he recently stayed in his mother's house to assist her with her needs until she moved into a nursing home. See id.

A December 2017 VA treatment record noted the Veteran decided to stay with his elderly mother and his son after Hurricane Maria caused damages to his residence. See id.

July 2018 VA treatment records show that the Veteran reported feeling anxious and angry, with increased anxiety and depressive symptoms as he was having a lot of pain with ongoing sleep impairment, and he requested day hospital admittance. See id.

July 2018 VA treatment records noted the Veteran had been admitted to the San Juan Capestrano System Partial Hospitalization Program for 14 days. See June 2020 Medical Treatment Record - Government Facility.

An October 2018 VA treatment record noted the Veteran's reports of ongoing depression and
See id.

A December 2017 VA treatment record noted the Veteran decided to stay with his elderly mother and his son after Hurricane Maria caused damages to his residence. See id.

An October 2018 VA treatment record noted the Veteran's reports of ongoing depression and lack of motivation, isolation, and that he needed to place his mother in a nursing home due to Alzheimer's and his inability to care for her. He reported he became a widower in 1988 and raised his three children by himself. See id.

In a February 2019 VA treatment record, the Veteran reported his ongoing lack of motivation and sleep impairment, that he continued to be isolated, and that he had planned to return to the States eventually as he only came to Puerto Rico to care for his mother, and he has since been forced to place her in a nursing home. See id.

An August 2019 VA treatment record noted the Veteran's reports that he has not attempted suicide but have times in which the thought popped into his mind but that he had protective factors that helped him make the thought vanish. See id.

An October 2019 VA treatment record noted the Veteran adamantly denied suicidal and homicidal ideation, plans, intents, or attempts and stated the presence of children and grandchildren in his life were protective factors. He did not report perceptual disturbances. See id.

In November 2019, the Veteran submitted a disability benefits questionnaire in support of the claim that was conducted by a private examiner. The examiner indicated that no records were reviewed and that the information for examination was provided by the Veteran. The examiner diagnosed PTSD and major depressive disorder, recurrent, severe with psychotic features and indicated it was possible to differentiate what symptoms were attributable to each diagnosis. The examiner noted that as related to PTSD, his symptoms included anxiety and fear, recurrent and distressing memories, recurring distressing dreams and alteration of mood associated with the traumatic event. Regarding MDD, the examiner noted symptoms of depressed mood, decreased interest in daily activities, crying spells, feelings of hopelessness and anhedonia, and psychomotor retardation and agitation. The examiner noted the Veteran was isolated, was easily irritable with family members and friends, had poor interpersonal relationships and poor social judgment.

The examiner noted the Veteran experienced recurrent, distressing recollections of the traumatic event; experienced recurrent distressing of the event; acted or felt as if the traumatic event were recurring; had intense psychological distress at as well as physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The examiner noted his efforts to avoid distressing thoughts, feelings, or conversations associated with the traumatic events; his efforts to avoid activities, places, or people that arouse recollections of the trauma; his markedly diminished interest or participation in significant activities; his feelings of detachment or estrangement from others; and his sense of a foreshortened future. The examiner noted the Veteran's difficulty falling or staying asleep, irritability or outburst of anger, difficulty concentrating, and hypervigilance. The examiner noted the Veteran's symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, inability to establish and maintain effective relationships and persistent delusions or hallucinations. Overall, the examiner found the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, as well as total occupational and social impairment. See November 2019 Disability Benefits Questionnaire (DBQ) - Veteran Provided.

In a November 2019 VA examination, the examiner diagnosed major depressive disorder, recurrent, moderate. The examiner noted the Veteran lived alone, was widowed, had three adult children, and his support symptom consisted of friends. The examiner noted the Veteran's symptoms included depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that during examination, the Veteran was oriented to person, place, time, and situation, was well groomed, and had clear and goal-oriented speech. The Veteran denied any auditory or visual hallucinations. He also denied
. See November 2019 Disability Benefits Questionnaire (DBQ) - Veteran Provided.

In a November 2019 VA examination, the examiner diagnosed major depressive disorder, recurrent, moderate. The examiner noted the Veteran lived alone, was widowed, had three adult children, and his support symptom consisted of friends. The examiner noted the Veteran's symptoms included depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that during examination, the Veteran was oriented to person, place, time, and situation, was well groomed, and had clear and goal-oriented speech. The Veteran denied any auditory or visual hallucinations. He also denied any suicidal or homicidal ideation, plan, or intent. The examiner noted mild impairment in concentration and found no impairment in short term memory. Overall, the examiner stated that the Veteran had occupational and social impairment with reduced reliability and productivity. See November 2019 Compensation and Pension (C&P) Exam.

VA treatment records from January 2020 to January 2022 noted the Veteran was groomed appropriately, was alert and oriented, was cooperative and reasonable, had normal speech in rate and rhythm, had normal, coherent, and logical thought process and association, did not report suicidal or violent ideation, had no unusual thought content, had fair to good insight and judgment, denied perceptual disturbances, and had euthymic mood with congruent affect. The records also noted the Veteran's participation in support group therapy and noted he was receptive to group treatment, was polite, caring, kind, friendly, supportive, and an attentive listener. See May 2022 Medical Treatment Record - Government Facility (2).

VA treatment records in February 2020 and March 2020 noted the Veteran's significant other as well as his daughter had accompanied the Veteran to his medical appointments. See May 2022 Medical Treatment Record - Government Facility.

In a May 2022 private evaluation, the reviewing examiner diagnosed major depressive disorder, recurrent, severe with psychotic features. The examiner noted during examination that the Veteran was cooperative, had normal speech in rate and volume, described his mood as "nervous a lot," had clear and coherent thought processes, had no delusions, denied suicidal or homicidal ideation, and did not seem to be responding to any internal stimuli. The examiner noted the Veteran's symptoms caused significant distress or impairment in social, occupational, or other areas of functioning, and was not attributable to the physiological effects of a substance or to another medical condition. The examiner noted the Veteran's depressive symptoms predated any psychotic symptoms and that his hallucinations are more likely related to MDD with psychotic features than schizophrenia. See May 2022 Medical Treatment Record - Non-Government Facility.

Analysis

Based on the foregoing, an increased rating of 70 percent, but no higher, for the entire period on appeal is warranted. The evidence shows that throughout the period on appeal the Veteran has displayed unprovoked irritability, increased isolation, instances of suicidal ideation, and intermittent disheveled appearance. Furthermore, the evidence of record during the entire period on appeal reflects that while the Veteran was able to maintain relationships with his mother and adult children, as well as some individuals outside of his immediate family, his symptoms significantly impaired the quality of those relationships. Based on the above, the Board finds that the Veteran's overall disability picture more nearly approximated occupational and social impairment with deficiencies in most areas. 38 C.F.R. § 4.130, Diagnostic Code 9434. As such, an increased rating of 70 percent, but no higher, for the entire period on appeal for the Veteran's service-connected acquired psychiatric disorder is warranted.

However, an increased rating in excess of the 70 percent rating assigned herein is not warranted. The treatment records associated with the file during the period at issue reflect that the Veteran's behavior, thought processes, speech, hygiene, and orientation were mainly noted to be normal.

During the period considered, treatment records noted impaired recent memory. However, there is no evidence that the Veteran had such memory impairment that he could not remember closely held information. Indeed, the Veteran has been able to provide information as to his ongoing mental and physical ailments consistently and the circumstances as to his living situation and relationships throughout the period on appeal. None of the medical evidence has indicated that the Veteran has memory impairment so severe that he has difficulty remembering information such as his own name. As such, the probative evidence of record weighs against a finding that the Veteran's reported memory impairment rises to the level of severity contemplated by a 100 percent rating.

A 100 percent rating also contemplates individuals who are a persistent threat to themselves. Persistent is defined, in pertinent part, as "existing for
, there is no evidence that the Veteran had such memory impairment that he could not remember closely held information. Indeed, the Veteran has been able to provide information as to his ongoing mental and physical ailments consistently and the circumstances as to his living situation and relationships throughout the period on appeal. None of the medical evidence has indicated that the Veteran has memory impairment so severe that he has difficulty remembering information such as his own name. As such, the probative evidence of record weighs against a finding that the Veteran's reported memory impairment rises to the level of severity contemplated by a 100 percent rating.

A 100 percent rating also contemplates individuals who are a persistent threat to themselves. Persistent is defined, in pertinent part, as "existing for a long or longer than usual time or continuously. Merriam-Webster's Collegiate Dictionary 924 (11 ed. 2003). To this end, the Board notes that during the period on appeal, the Veteran intermittently endorsed suicidal ideation and except for one particular instance, did not have a plan or intent. Regarding the aforementioned instance, the Veteran was subsequently hospitalized at psychiatric inpatient unit for 10 days in December 2013 for hearing voices telling him to kill himself and that he had a plan to hang himself. However, upon discharge from hospitalization, the Veteran firmly denied ideas of self-harm or harm to others. The Board acknowledges the Veteran had also participated in partial day hospitalization for increased suicidal ideation in October 2016 and July 2018, however, upon discharge, he similarly denied any further ideas of self-harm or harm to others. Additionally, regarding the reports of increased suicidal ideation in October 2016, the Veteran clarified that he fought against the thoughts and was depressed but not suicidal. As discussed above, persistent is defined as "existing for a long or longer than usual time or continuously." Id. He was in danger of hurting himself, but the danger dissipated with his respective inpatient/partial hospitalization treatment, and thus is not persistent. The Board also acknowledges the Veteran's reports that he was a frequent danger to himself due to persistent suicidal thoughts, severe depressed feelings, and anxiety. See May 2022 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. However, it is not found that the severity, frequency, and duration of these suicidal ideations rises to the level contemplated by a 100 percent disability rating. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Rather, the Veteran's suicidal thoughts are intermittent in nature and typically unaccompanied by plan or intent. While the record clearly establishes the Veteran's history of suicidal ideations spanning the period on appeal, the evidence also reflects that the Veteran generally denied experiencing suicidal or homicidal ideation during the period on appeal and that VA treatment records have consistently noted the Veteran was not an imminent risk to himself or others. VA treatment records even note the Veteran "adamantly" or "emphatically" denied suicidal and homicidal ideation, plans, intents, or attempts, on numerous occasions, and had reported the presence of his children and grandchildren in his life as protective factors. See January 2020 CAPRI. Moreover, the evidence does not establish that the Veteran's suicidal ideations are productive of total occupational and social impairment, as required by the rating criteria. As discussed more below, the Veteran maintains relationships with his family members and remains capable of basic communication and self-care. Although his suicidal ideations certainly interfered with his mental health, they did not alone render him as totally impaired. As such, the frequency, duration, and severity of his suicidal ideations are adequately compensated in the criteria for a 70 percent rating. In offering this conclusion, the Board does not overlook the significant impact of the Veteran's suicidal ideations on his mental health. Rather, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead, 29 Vet. App. at 22. In this case, the evidence does not establish that the Veteran experienced total occupational and social impairment due to his disability, whether due solely to his suicidal ideations or the collective impact of all psychiatric symptoms.

A temporary 100 percent rating under 38 C.F.R. § 4.29 is also not warranted because he was not hospitalized for more than 21 days at a time.

With respect to thought content, the Board notes that the Veteran reported either a history of auditory or visual hallucinations or
quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead, 29 Vet. App. at 22. In this case, the evidence does not establish that the Veteran experienced total occupational and social impairment due to his disability, whether due solely to his suicidal ideations or the collective impact of all psychiatric symptoms.

A temporary 100 percent rating under 38 C.F.R. § 4.29 is also not warranted because he was not hospitalized for more than 21 days at a time.

With respect to thought content, the Board notes that the Veteran reported either a history of auditory or visual hallucinations or recently experiencing such hallucinations intermittently during the period on appeal. The 100 percent rating under the General Formula contemplates persistent delusions of hallucinations.

Here, the evidence does not show that the hallucinations were persistent during the period at issue. Again, persistent is defined as "existing for a long or longer than usual time or continuously." Merriam-Webster's Collegiate Dictionary 924 (11 ed. 2003). In this case, during the period considered, the Veteran reported hearing voices calling his name in May 2014 and October 2016 and reported seeing shadows in November 2012, December 2013, May 2014, October 2016, and March 2017. In December 2013, the Veteran specifically reported only occasionally seeing shadows and indicated he did not feel distressed about it. Other than the aforementioned dates noting perceptual disturbances, the VA treatment records show the Veteran routinely denied any issues with auditory and visual hallucinations. Thus, the hallucinations were not persistent, and therefore do not more nearly approximate the level of severity contemplated by a 100 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9434.

Additionally, the Board acknowledges the November 2019 private DBQ report that noted the Veteran had total occupation and social impairment. However, the Board highlights that the private examiner did not indicate a review of the entire claims file and based the examination on the Veteran's subjective reports alone. Moreover, the private examiner had provided conflicting internal findings as to the level of the Veteran's impairment when also marking that the Veteran had occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board also highlights the November 2019 VA examiner's determination that the Veteran had occupational and social impairment with reduced reliability and productivity, which only warrants a 50 percent rating. The Board has considered the findings of the private and VA examination reports in conjunction with the treatment records of record and finds that the Veteran's level of impairment is more accurately encompassed by the currently assigned 70 percent rating, which contemplates deficiencies in family, work and social relationships and the inability to establish and maintain effective relationships. The Board reiterates that the rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). As detailed above, the evidence during the period considered does not present a picture of hallucinations, remote memory difficulties, danger of hurting self or others, or other severe symptoms with a frequency or duration sufficient to approximate total occupational and social impairment.

Significantly, the Board does not consider only the psychiatric symptoms a Veteran experience, but rather, how those symptoms impact his occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan, 16 Vet. App. at 442. The mere presence of certain symptoms alone, such as hallucinations, does not mandate a higher rating. In addition to the aforementioned symptoms that have not demonstrated such frequency, severity, or duration to equate to total occupational and social impairment, during the entire period at issue the Veteran was also able to maintain relationships (albeit strained at times) with his adult children and mother. While the record clearly reflects that the quality of these relationships varied during the period at issue due to his symptoms, the Veteran was able to maintain these relationships during the entire period on appeal.

The evidence of record also indicates that the Veteran was able to maintain some relationships outside of his immediate family. In a May 2014 VA treatment record, he referenced he had a "friend" who accompanied him to places, the November 2019 VA examination noted
rating. In addition to the aforementioned symptoms that have not demonstrated such frequency, severity, or duration to equate to total occupational and social impairment, during the entire period at issue the Veteran was also able to maintain relationships (albeit strained at times) with his adult children and mother. While the record clearly reflects that the quality of these relationships varied during the period at issue due to his symptoms, the Veteran was able to maintain these relationships during the entire period on appeal.

The evidence of record also indicates that the Veteran was able to maintain some relationships outside of his immediate family. In a May 2014 VA treatment record, he referenced he had a "friend" who accompanied him to places, the November 2019 VA examination noted the Veteran's support system consisted of friends, and February 2020 VA treatment records noted the Veteran had a significant other. VA treatment records also noted the Veteran reportedly attended support group meetings and has continued to seek medical treatment on regular basis for both his mental and physical disorders. It is uncontroverted that the Veteran's service-connected acquired psychiatric disorder and its associated symptoms have impaired his relationships with his family and those outside of it. Ultimately, the Board finds that the probative evidence of record when considered as a whole does not indicate that the Veteran's service-connected acquired psychiatric disability picture more nearly approximates total occupational and social impairment.

Therefore, for the reasons stated above, the Board finds that for the entire period on appeal, an initial rating of 70 percent, but no higher, is warranted. See Hart, 21 Vet. App. 505.

TDIU

Entitlement to a TDIU.

The Board also notes that the Veteran raised the claim of entitlement to a TDIU as related to his service-connected disabilities, to include his acquired psychiatric disorder, during the pendency of the appeal. In addition to the Veteran's reports that he is not able to work as a result of his service-connected acquired psychiatric disorder, treatment records and evaluations reflect that the Veteran has been unemployed since 1976 and indicate that his service-connected psychiatric disorder impairs his ability to work. See May 2022 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, May 2022 Income and Tax Statements, and May 2022 Medical Treatment Record - Non-Government Facility. As such, the issue of entitlement to a TDIU was raised by record as part of the acquired psychiatric disorder increased rating claim under Rice v. Shinseki, 22 Vet. App. 447. 453-54 (2009). The issue of entitlement to a TDIU is therefore part and parcel of the underlying increased rating appeal.

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a).

The established policy of VA reflects that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history and educational and vocational attainments are to be considered. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Court held that "substantially gainful occupation" contains both economic and noneconomic components. Ray v. Wilkie, 31 Vet. App. 58 (2019). The economic component "simply means 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 non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir.
Vet. App. 58 (2019). The economic component "simply means 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 non-economic component requires consideration of the Veteran's history, education, skill, and training, and physical and mental ability to perform the activities required by an occupation. Further, the word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

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).

The Veteran is now in receipt of a 70 percent disability rating for his service-connected acquired psychiatric disorder from April 2, 2012, and a 10 percent disability rating for his service-connected lumbar spine disability from April 2, 2012. Throughout the appeal, the Veteran meets the minimum regulatory requirements for consideration for a schedular TDIU. 38 C.F.R. § 4.16(a). The question remaining is whether the Veteran's service-connected disabilities renders him incapable of participating in a substantially gainful occupation.

Here, probative evidence of record shows the Veteran's service-connected disabilities substantially impacts his ability to secure and engage in employment at any exertional level.

The Veteran reported on his May 2022 TDIU application, that he is too disabled to work due to his service-connected disabilities and that he last worked full-time in 1976. His limited occupational history included work as a mechanic and welder. The Veteran reported a high school education without any other occupational training. See January 2020 CAPRI and May 2022 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability.

In a 2012 letter from the Veteran's readjustment counselor, the provider indicated that as a result of his mental health condition, he was not able to function in everyday life activities, including ability to work. See October 2012 Third Party Correspondence.

In December 2015, a private physician, after conducting a thorough review of the medical records, statements, and pertinent medical literature, opined that the Veteran's lumbar spine disability prevented the Veteran from any form of gainful employment. See June 2016 Correspondence.

In a November 2019 private DBQ, the reviewing examiner found that the Veteran's acquired psychiatric disorder symptoms included difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and inability to establish and maintain relationships. See November 2019 Disability Benefits Questionnaire (DBQ) - Veteran Provided.

In a November 2019 VA Examination, the examiner noted the Veteran was unemployed and found that the Veteran's acquired psychiatric disorder symptoms included difficulty in establishing and maintaining effective work and social relationships. See November 2019 C&P Exam.

In a November 2020 VA examination, the Veteran reported that he had to move carefully to keep from aggravating his back. He indicated that his symptoms included stabbing and burning pain with swelling and muscle spasms that would last five to six hours. The examiner noted the Veteran's regular use of brace and crutches and occasional use of a walker for his back condition. The examiner noted that the Veteran's lumbar spine disability impacted his ability to work, specifically that it limited repetitive heavy lifting. See November 2020 C&P Exam.

In a private evaluation conducted in May 2022, the reviewing medical provider indicated a detailed review of the evidence of record and interview of the Veteran. The examiner opined that the medical evidence of record showed the Veteran's service-connected acquired psychiatric disorder alone is enough to render him disabled and completely unemployable since his discharge from service in November 1976. The examiner further noted that when combined with the limitations imposed by his service-connected back disability, he would be considered even more incapable of participating in any sort of employment setting. See May 2022 Medical Treatment Record - Non-Government Facility.

The question of whether an individual is able to engage in substantial gainful activity must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (199
employable since his discharge from service in November 1976. The examiner further noted that when combined with the limitations imposed by his service-connected back disability, he would be considered even more incapable of participating in any sort of employment setting. See May 2022 Medical Treatment Record - Non-Government Facility.

In this case, in light of the Veteran's limited work history, the Board finds that the Veteran's service-connected disabilities would be expected to materially interfere with his ability to engage in the type of work for which he has training and work experience. In particular, his ongoing depression, anxiety, sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, difficulty in establishing and maintaining effective work and social relationships, irritable behaviour and angry outbursts, recent memory impairment, suicidal ideation, increased social avoidance, decreased concentration, low energy and motivation would cause significant non-exertional restrictions. His symptoms would limit his ability to complete tasks in a timely manner, establish work/social relationships, and be consistent, reliable, or productive. The Board also has considered the service-connected lumbar spine disability, which impair his ability to secure and maintain work requiring strenuous physical activity.

The evidence demonstrates the Veteran's service-connected disabilities have precluded substantially gainful employment consistent with the Veteran's general education and labor-intensive occupational experience. Therefore, entitlement to a TDIU on a schedular basis is warranted. 38 U.S.C. § 5107(a).

T. Raymond

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Cheng, Jenny

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.

Analyze in VA Law Explorer