OTHER SPECIFIED TRAUMA/STRESSOR-RELATED DISORDER

Summary

The Veteran, an Air Force Veteran who served from August 1948 to June 1952, was granted a 70 percent disability rating for an acquired psychiatric disorder. The Veteran's surviving spouse appealed the denial of a higher rating and the denial of Total Disability based on Individual Unemployability (TDIU). The Board found that the Veteran's psychiatric symptoms, including nightmares, flashbacks, depression, sleep disturbances, and social isolation, caused occupational and social impairment that approximated the criteria for a 70 percent rating. While acknowledging conflicting opinions from a VA examiner and a private psychologist regarding the severity of the disability, the Board resolved reasonable doubt in the Veteran's favor, granting the 70 percent rating. The Board noted that the evidence did not support total occupational and social impairment, precluding a higher rating. The TDIU claim was remanded for further development, including obtaining updated forms and considering the impact of the 70 percent rating on the unemployability assessment, as the issues were deemed inextricably intertwined.

Rationale

Evidence in equipoise, resolved in Veteran's favor; Symptoms approximated 70% rating criteria; Conflicting opinions from VA examiner and private psychologist

Full Decision Text

Citation Nr: A22002913
Decision Date: 02/18/22	Archive Date: 02/18/22

DOCKET NO. 220107-210151
DATE: February 18, 2022

ORDER

A disability rating of 70 percent, but not in excess thereof, for service-connected other specified trauma/stressor-related disorder ("acquired psychiatric disorder") is granted, subject to the regulations governing the award of monetary benefits.

REMANDED

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

FINDING OF FACT

For the entire rating period on appeal, the Veteran's acquired psychiatric disorder was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, or mood, but not of total social and occupational impairment.

CONCLUSION OF LAW

Resolving reasonable doubt in the appellant's favor, the criteria for an award of a disability rating of 70 percent, and not in excess thereof, for the Veteran's acquired psychiatric disorder for the entire rating period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9499-9411.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from August 1948 to June 1952.  Unfortunately, the Veteran died in October 2014.  The appellant is his surviving spouse and has been properly substituted as the claimant for purposes of processing the claim to completion.  See 38 U.S.C. § 5121A.

The original rating decision underlying the present appeal was issued in June 2020 by a Department of Veterans Affairs (VA) Regional Office.  Following notification of a denial of the claim on Higher-Level Review in January 2021, the appellant timely appealed to the Board of Veterans' Appeals (Board), requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ).  See January 2022 VA Form 10182; 38 C.F.R. §§ 20.201, 20.202(b)(1).

The United States Court of Appeals of Veterans Claims (Court) has held that if a claimant or the record reasonably raises the question of whether a veteran is unemployable due to a disability for which a higher rating is sought, then part and parcel of that claim for a higher rating is whether a TDIU is warranted as a result of that disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Inasmuch as the appellant raised the question of unemployability due, at least in part, to the Veteran's acquired psychiatric disorder during the period on appeal, and as she is seeking a higher rating for his acquired psychiatric disability as part of the appeal, the Board finds that the issue of entitlement to a TDIU is also before the Board.  See, e.g., Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). 

Higher Rating

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

If 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.  If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

A disability rating of 70 percent, but not in excess thereof, for service-connected acquired psychiatric disorder is granted.

During his life, the Veteran sought to establish a higher disability rating for his service-connected acquired psychiatric disorder.  The appellant continues to seek a higher rating as a substituted claimant. 

The Veteran was in receipt of a 50 percent rating for his acquired psychiatric disorder for the period of August 10, 2004 to May 11, 2010, and a 30 percent rating for the period from May 11,
. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999).

A disability rating of 70 percent, but not in excess thereof, for service-connected acquired psychiatric disorder is granted.

During his life, the Veteran sought to establish a higher disability rating for his service-connected acquired psychiatric disorder.  The appellant continues to seek a higher rating as a substituted claimant. 

The Veteran was in receipt of a 50 percent rating for his acquired psychiatric disorder for the period of August 10, 2004 to May 11, 2010, and a 30 percent rating for the period from May 11, 2010 to October 29, 2014 (date of death) under Diagnostic Code 9499-9411.  38 C.F.R. § 4.130.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27. 

All psychiatric disabilities are evaluated under a general rating formula for mental disorders.  Under the general rating formula, a 10 percent rating is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 

A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events). 

A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships.

A 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships.

A total schedular rating of 100 percent is warranted 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.

The list of symptoms in the rating criteria are meant to serve as 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.  Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002).  If the evidence shows that the veteran suffers symptoms or effects 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.  Id. at 443. 

For the reasons set forth below, the Board finds that the evidence is in relative equipoise as to whether an evaluation of 70 percent is warranted for the Veteran's acquired psychiatric disorder for the entire rating period on appeal.  As noted previously, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood.  For the entire rating period on appeal, the Board is satisfied that the Veteran's disability picture more closely approximates the criteria required for that rating.

VA treatment records dated in August 2004 showed that the Veteran's acquired psychiatric disorder was productive of nightmares, flashbacks, depression, trouble sleeping, loss of appetite, and a tendency to isolate.  The
 reasons set forth below, the Board finds that the evidence is in relative equipoise as to whether an evaluation of 70 percent is warranted for the Veteran's acquired psychiatric disorder for the entire rating period on appeal.  As noted previously, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, or mood.  For the entire rating period on appeal, the Board is satisfied that the Veteran's disability picture more closely approximates the criteria required for that rating.

VA treatment records dated in August 2004 showed that the Veteran's acquired psychiatric disorder was productive of nightmares, flashbacks, depression, trouble sleeping, loss of appetite, and a tendency to isolate.  The Veteran was overwhelmed and sobbed when sharing his traumatic experience during service.  See also September 2004 and October 2004 VA treatment records. 

A May 2010 VA examiner assessed that the Veteran's acquired psychiatric disorder was productive of psychiatric symptoms and signs that were transient or mild and resulted in decreased work or social efficiency and decreased ability to perform certain occupational and social tasks only during a period of significant stress.  

The appellant submitted a June 9, 2018 report by private psychologist J.S., who reviewed the record, and opined that the Veteran's acquired psychiatric disorder was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, and mood due to symptoms such as obsessional rituals which interfere with routine activities, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, difficulty in adapting to stressful circumstances, including work or a work-like setting, and inability to establish and maintain effective relationships.  The examiner noted that this level of impairment was present from at least May 2006 until the Veteran's death in October 2004, but also noted that VA treatment records dated in October 2004 reported that the Veteran's acquired psychiatric disorder was significant and impacted his life.  

Based on the foregoing, and resolving reasonable doubt in the appellant's favor, the Board finds that the frequency, severity, and duration of the Veteran's psychiatric symptoms caused social and occupational impairment that more nearly approximates the criteria for a 70 percent rating for the entire rating period on appeal.  38 C.F.R. § 4.3, 4.7, 4.130.

In so finding, the Board acknowledges that the May 2010 VA examiner and June 2018 private physician offered conflicting assessments as to the severity of the Veteran's disability.  However, these reports are of equal probative value, as both examiners consider the entirety of the Veteran's medical history, including the nature and severity of his symptoms and their impact on his overall functioning.  In so finding, doubt is hereby resolved in the Veteran's favor.

The Board further finds that an evaluation in excess of 70 percent was not warranted for the Veteran's acquired psychiatric disorder at any point during the rating period on appeal.  A higher rating would be warranted if the Veteran's condition was causative of total occupational and social impairment.  Here, the evidence persuasively weighs against such a finding.  The Veteran's treatment records and other evidence relevant to the period at issue do not establish the presence of total social and occupational impairment.  The May 2010 VA examination report reflects that the Veteran reported that he enjoyed spending time with his wife, and a reasonable degree and quality of social relationships.  He also reported that he remained close to one of his adopted children and one of his biological children.  The record does not show that he required assistance with the tasks of daily living due to his disability, and was instead capable of functioning to some degree despite the presence of his symptoms.

This evidence indicates that his capacity for social functioning is not totally impaired.  For these reasons, the Board finds that an evaluation in excess of 70 percent is not warranted for any point during the rating period on appeal.  38 C.F.R. §§ 4.3, 4.7, 4.130.

Of final note, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

Entitlement to a TDIU is remanded. 

The issue of entitlement to a TDIU rating has been raised in this case by the appellant.  Specifically, the appellant submitted a June 9, 2018 report by private psychologist J.S., who reviewed the record, and opined that it is at least as likely as
 any other issues been reasonably raised by the record, for the Board's consideration.  See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

REASONS FOR REMAND

Entitlement to a TDIU is remanded. 

The issue of entitlement to a TDIU rating has been raised in this case by the appellant.  Specifically, the appellant submitted a June 9, 2018 report by private psychologist J.S., who reviewed the record, and opined that it is at least as likely as not that the Veteran's acquired psychiatric condition precluded his ability to secure and follow substantially gainful employment from at least May 2006 to October 2014 (the time of the Veteran's death.  See Rice, 22 Vet. App. at 453-55 (holding TDIU is an element of an initial rating or increased rating claim when there is evidence of unemployability raised by the record during a rating appeal period).  The Board has awarded a 70 percent rating for the Veteran's acquired psychiatric disorder for the entire rating period on appeal, and the implementation of that award may significantly alter the legal and analytical framework applicable to his TDIU claim.  That is to say, the matters are inextricably intertwined.  Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue).  Moreover, the record does not indicate that any development has yet been conducted as to such a claim.  As such, the Board will remand the TDIU issue to the AOJ. 

The matter is REMANDED for the following actions:

1.  Provide the appellant with VA Forms 21-8940 and 21-4192 and request their completion. Allow a reasonable amount of time for response, and if a response is received, conduct all development indicated by such response, to include the provision of VA Form 21-4192 to the Veteran's last identified employers.

2.  After implementing the award of a 70 percent rating for the Veteran's acquired psychiatric disorder, adjudicate the claim for a TDIU, taking into consideration all of the evidence of record.

 

 

Kate E. Kovarovic

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Ragheb, 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.