Citation Nr: 1736576	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-35 370	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent prior to September 13, 2012, and in excess of 70 percent thereafter, for anxiety disorder, not otherwise specified (NOS).

2.  Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) prior to July 1, 2008.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. Barstow, Counsel


INTRODUCTION

The Veteran had active military service from March 1964 to March 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the VA Regional Office (RO) in Hartford, Connecticut.  

The case was remanded in November 2010 to afford the Veteran his requested hearing.  In June 2012, the Veteran testified at a hearing conducted before the undersigned.  A transcript of the hearing has been associated with the claims file.

The case was remanded again in January 2013 and June 2016 for further development.

In a February 2017 rating decision, the Appeals Management Center (AMC) assigned a 50 percent rating for the psychiatric disability effective from the date of service connection.  A TDIU effective from July 1, 2008, was also granted.  The award of a TDIU was considered to be a full grant of that issue; however, the Veteran has reported being unemployable as a result of his service-connected psychiatric disorder.  The Board observes that a TDIU is an element of all initial ratings.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Consequently, as the RO/AMC has considered the Veteran's initial rating assigned to his psychiatric disability, and as the Veteran has reported that such disability renders him unemployable, the Board concludes that the issue of entitlement to a TDIU prior to July 1, 2008, is properly on appeal.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDINGS OF FACT

1.  Since the award of service connection, the anxiety disorder, NOS results in 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; depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; intermittent ability to perform activities of daily living, including maintenance of minimal hygiene; increasing social isolation; and irritability.

2.  The Veteran is service connected for a psychiatric disability; peripheral neuropathy of the bilateral upper and lower extremities; residuals of prostate cancer; diabetes mellitus, type II; tinnitus; erectile dysfunction; hearing loss; and hypertension.  He has met the requirements for a TDIU on a schedular basis throughout this appeal.  

3.  The Veteran has a high school education and last worked in 2004 as a car salesman.

4.  The Veteran's service-connected disabilities preclude his substantially gainful employment.


CONCLUSIONS OF LAW

1.  The criteria for an initial 70 percent rating, but no higher, for anxiety disorder, NOS have been met prior to September 13, 2012.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413 (2016).

2.  The criteria for a rating in excess of 70 percent for anxiety disorder, NOS from September 13, 2012, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9413 (2016).

3.  The criteria for an award of TDIU prior to prior to July 1, 2008, have been met.  38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159; see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification).

The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required).  


II.  Analysis

A.  Initial Rating

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  Ratings are based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal.  See generally Fenderson v. West, 12 Vet. App. 119 (1999).  Where 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.  See 38 C.F.R. § 4.7.  

The Veteran's psychiatric disability is rated as 50 percent disabling prior to September 13, 2012, and as 70 percent thereafter under 38 C.F.R. § 4.130, DC 9413.  DC 9413 evaluates impairment from unspecified anxiety disorder.  During the appeal, the Veteran was in receipt of multiple temporary total evaluations for this disability due to hospitalizations.  Those periods are not for consideration.   

Pursuant to DC 9413, a 50 percent evaluation is warranted if the evidence establishes there is occupational and social impairment, with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130, DC 9413 (2016).   

A 70 percent evaluation is warranted if the evidence establishes there is 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 worklike setting); inability to establish and maintain effective relationships.  Id. 

A 100 percent evaluation is warranted if the evidence establishes 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 behavior; persistent danger of hurting oneself 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. 

When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002).  Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118. 

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.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  38 C.F.R. § 4.126(a) (2016).  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 on the basis of social impairment.  38 C.F.R. § 4.126(b).

The Global Assessment of Functioning (GAF) is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.  See Carpenter v. Brown, 8 Vet. App. 240 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV).

A GAF score of 61 to 70 is indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within household) but generally functioning pretty well, has some meaningful interpersonal relationships).

A GAF score of 51 to 60 is indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with co-workers). 

A GAF score of 41 to 50 is indicative of serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).

A GAF score of 31 to 40 is indicative of some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).

The Veteran was afforded a VA examination in April 2006.  He reported anxiety attacks and symptoms.  Anxiety symptoms included anxiety attacks lasting three to four minutes in duration.  He reported that those occurred particularly when driving, at which time he could become short of breath, with significant tension and increased heart rate, at times causing him to pull his car off the road.  The Veteran reported sleep disturbance and significant claustrophobia.  He reported avoiding elevators with more than three people; crowded stores; and riding in the back of an automobile.  The Veteran generally denied hypervigilance.  He reported being quite avoidant of Vietnam-related material.  The Veteran reported a history of difficulty being close to others other than his spouse.  He reported enjoying social interaction.  He continued to enjoy former activities including bowling (bowling in a weekly league) and camping.  The Veteran reported being married to his third wife and having a good relationship with her.  He reportedly maintained fairly close relationships with his two children from his prior marriages.  

Examination revealed that the Veteran was pleasant and cooperative.  Affect was slightly constricted; mood was congruent, generally normothymic with some depressive/dysthymic elements; and thought process was logical and organized with no evidence of thought disorder.  He denied hallucinations or delusions; there was no evidence of those on exam.  Cognition was not formally tested, but was grossly intact.  He denied any suicidal or homicidal ideation.  Insight and judgment were good.  A GAF score of 65 was assigned.  The examiner opined that the Veteran's symptoms had caused minor transient problems in vocational function, as well as some mild limitations in social function.

At a VA examination in October 2008, the Veteran reported that his condition was "progressively getting a little worse."  He reported continued social anxiety, which had led to avoidance of crowds as well as decreased socialization recently.  The Veteran reported some increased distress in response to Vietnam-related and war-related movies and news.  He reported that claustrophobic symptoms had recently interfered with his ability to complete an MRI.  The examiner noted that the Veteran appeared to be suffering with a worsening loss of interest and pleasure; he no longer engaged in bowling, his former passion.  The Veteran continued to remain president of the league and attended weekly meetings, but was not bowling.  He also reported having lost interest in camping.  The Veteran could not articulate whether social anxiety or general loss of interest was the main factor in his disengagement from former activities.  He reported that his anxiety symptoms remained, and, "if anything, are getting a little worse."  He reported that his anxiety attacks had increased to once or twice a week from once or twice a month.  He reported sleep disturbances.  The Veteran described increasing problems with memory and irritability.  He managed his activities of daily living without difficulty.  The Veteran remained married to his wife and in close contact with his son and his young children, but had been somewhat estranged from his daughter due to conflicts between her and his wife.  He also reported family stresses with his wife's children.  

Examination revealed that the Veteran was well-groomed, calm, and cooperative.  Affect was slightly dysphoric; mood was also somewhat dysphoric and often "bored;" and thought process was logical and organized with no evidence of thought disorder.  He denied delusions or hallucinations; there was no evidence of those on exam.  He denied suicidal or homicidal ideation.  Cognition was not formally tested, but was grossly intact.  Insight and judgment were good.  A GAF score of 55-60 was assigned; the highest score in the past year was reported to be 60.  The examiner opined that the Veteran presented with some worsening of depressive symptoms over the past year, with increased social avoidance/isolation, loss of interest in activities, and anhedonia.  

At his hearing, the Veteran testified that he had problems with anger and road rage.  June 2012 Hearing Transcript (T.) at 6-7.  He testified that he had thoughts of suicide.  Id. at 7.  He also testified that he stayed to himself.  Id.  The Veteran testified having problems with personal hygiene and having symptoms of anxiety.  Id. at 8.  

The Veteran was provided a VA examination in September 2012.  He reported having anxiety in small places.  The examiner noted that the Veteran's anxiety symptoms also permeated to his driving, such that he did not like driving in traffic and would have his wife drive instead.  He reported that being in heavy traffic upset him and he used to hyperventilate.  The Veteran noted that occasionally (once or twice) he felt like he could not breath when going to bed or when in a "small area."  He reported feeling stressed and becoming anxious due to disagreements between his wife and daughter.  The Veteran reported that he had been sleeping less.  He also reported a depressive mood roughly three days a week, but not all day.  He reported having lost some interests in activities he used to enjoy.  The Veteran bowled once a week maximum (sometimes not at all) compared to two to three times a week previously.  He reported being less social with his teammates after bowling and was no longer president of the league.  He continued to go camping to more local destinations.  The Veteran continued to keep in contact with his adult children, except for his daughter, with whom he had a strained relationship because of the situation with his current wife.  He reported that when he did need to leave the house, he lacked motivation for personal hygiene.  

A GAF score of 55 was assigned.  The examiner opined that the Veteran's disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  Examination revealed that the Veteran denied thoughts of self-harm or harming others.  His symptoms included depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a worklike setting; intermittent ability to perform activities of daily living, including maintenance of minimal hygiene; and being fearful of small places.  The examiner noted that the Veteran was well-groomed, neatly dressed, and appeared his stated age.  He was friendly and cooperative.  He presented with anxiety and depressive symptoms.  His social function seemed to have deteriorated mildly.  

At a VA examination in September 2016, the examiner opined that the Veteran's disability resulted in occupational and social impairment with reduced reliability and productivity.  The Veteran reported being estranged from his daughter for the past four years due to a conflict she had with his wife.  He endorsed a pattern of irritability, mood swings, and occasional difficulty controlling his anger.  He had a few friends; only occasionally engaged in activities/hobbies; he isolated; and he tended to feel detached from people and society.  The Veteran's deficits appeared to have increased over the past several years.  The examiner noted that the Veteran endorsed deficits in occupational functioning related to a history of low energy and motivation, difficulty concentrating, as well as short-term memory deficits.  He also endorsed problems related to recurring panic symptoms, particularly when he was in tight spaces and/or crowds.

Examination revealed symptoms of depressed mood; anxiety; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation.  The examiner noted that the Veteran presented as relatively well-groomed, casually dressed, and an average man appearing to be his stated age.  He was alert and oriented in all spheres.  Rapport was gradually established and maintained throughout the evaluation.  Eye contact was appropriate and speech was within normal limits.  His mood was dysphoric and affect was generally flat.  Thought processes were logical, coherent, and goal directed and thought content was within normal limits.  There was no evidence of auditory or visual hallucinations and the Veteran denied current suicidal and homicidal ideation.  The examiner noted that he did endorse a history of periodic suicidal ideation, but he did not endorse a history of serious intent.  Insight and judgment appeared to be grossly intact.

Treatment records during this appeal have shown symptoms akin to those documented at the examinations.  For example, a March 2006 record shows that the Veteran had anxiety, claustrophobia, and panic attacks.  Examination at that time showed an anxious mood and affect congruent with mood.  There were no perceptual disturbances; unusual thought content; and suicidal or homicidal ideation.  Insight and judgment were good.  A GAF score of 65 was assigned.  

As noted above, the Veteran was hospitalized for psychiatric treatment several times during this appeal.  A February 2007 discharge summary reveals that the Veteran had a GAF score of 40.  A discharge summary dated in February 2008 shows that he had a GAF score of 36.  The record shows that he had frequent sad mood and anxiety; pan-insomnia; problems with memory and concentration; irritability; fatigability; social withdrawal; and panic attacks averaging twice a week.  He denied suicidal or homicidal ideation and symptoms of bipolarity, delusions, and hallucinations.  A discharge summary from June 2008 reveals a GAF score of 38.  Mood and affect were dysphoric.  There were no suicidal or homicidal ideations; no evidence of formal thought disorder; and no hallucinations or delusions.  The Veteran was alert and oriented in all spheres; memory appeared intact; sensorium was clear; and insight and judgment was fair.  

A June 2009 discharge summary shows a GAF score of 39.  Mood was dysphoric; affect was anxious; memory appeared intact; sensorium was clear; and insight and judgment was fair.  The Veteran had passive suicidal ideation when he was depressed, but no plans, no intent, and no history of previous attempt.  There was no evidence of a formal thought disorder and no hallucinations or delusions were elicited.  He was alert and oriented in all spheres.  A discharge summary from August 2011 reveals a GAF score of 40.  The Veteran was neat, clean, cooperative, and made good contact.  He was oriented in all spheres.  There was no significant cognitive/memory impairment.  Mood was anxious, depressed; and affect was constricted but appropriate to thought content.  There was no formal thought disorder.  

Based on a review of the evidence, and in affording the Veteran the benefit-of-the-doubt, the Board concludes that a rating of 70 percent, but no higher, is warranted since the date of service connection.  In this case, when considering the totality of the level of impairment, symptoms shown, and GAF scores throughout the Veteran's treatment records, particularly the discharge summaries, and during the 2006, 2008, 2012, and 2016 examinations, the evidence supports a finding that a 70 rating is warranted.  Although the 2012 and 2016 examiners indicate that the Veteran's disability had worsened, when considering the discharge summaries in 2008, 2009, and 2011, the evidence suggests that the Veteran's psychiatric disability is more severe than the currently assigned 50 percent rating prior to September 13, 2012.  The symptoms shown during the course of this appeal indicate that the Veteran's anxiety disorder, NOS, results in occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood.  In light of the fact that the RO awarded a 70 percent rating based on the results of the September 2012 VA examination, considering that the impairment shown during that examination is similar to the impairment that has been shown throughout this appeal, especially in the discharge summaries, when affording the Veteran the benefit-of-the-doubt, the Board concludes that a 70 percent rating is warranted from the date of service connection.  

However, the criteria for a 100 percent disability rating have not been met at any time since the award of service connection.  The evidence does not indicate total occupational and social impairment.  No medical professional has provided any opinion indicating that the Veteran's psychiatric disability results in total occupational and social impairment.  The actual symptoms shown in his treatment records and during the examinations do not include such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting oneself or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  

The Board acknowledges that the list of symptoms supporting a 100 percent rating is not exhaustive.  See Mauerhan at 442-43.  However, even when taking into account the actual symptoms shown during this appeal, while the Veteran does have occupational and social impairment, total impairment has not been shown.  Although he has reported isolating himself, he has been shown to have some social interaction with a bowling league.  While the evidence shows that the Veteran is estranged from his daughter, he has been shown to have a relationship with his son and has remained married throughout this appeal.  As such, the Board is unable to conclude that the Veteran has total social impairment.  For the reasons discussed below, the Board is awarding a TDIU.  Thus, to the extent that this disability results in occupational impairment, such is being compensated for with the award of a TDIU.  The overall evidence of record does not indicate that the Veteran's psychiatric symptomatology results in total occupational and social impairment such that a 100 percent rating is warranted.   

The Board notes that the reported GAF scores in the 50s and 60s are indicative of mild to moderate symptoms.  However, the discharge summaries show GAF scores in the 30s and 40, indicative of some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking or mood, consistent with a 70 percent rating.  The Board also notes that, while important, the GAF scores assigned in a case are not dispositive of the evaluation and must be considered in light of the actual symptoms of the Veteran's disorder.  See 38 C.F.R. § 4.126(a).

Accordingly, and based on this evidentiary posture, the Board concludes that the totality of the evidence shows that a 70 percent rating, but no higher, is warranted since the date of service connection.  

The Board also finds that referral for an extraschedular rating is not warranted.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability.  38 C.F.R. § 4.1.  In exceptional cases where evaluations provided by the Rating Schedule are found to be inadequate, an extraschedular evaluation may be assigned that is commensurate with the Veteran's average earning capacity impairment due to the service-connected disorders.  38 C.F.R. § 3.321(b)(1).

The Court has provided a three-pronged test for determining whether extraschedular consideration is warranted.  Thun v. Peake, 22 Vet App 111, 114 (2008), aff'd sub. nom. Thun v. Shinseki, 573 F.3d 1366 (Fed. Cir. 2009).  First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Id.  In this regard, the Board must compare the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the Rating Schedule for that disability.  If the rating criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the Rating Schedule, in which case the assigned schedular evaluation is adequate and no referral is required.  Id.  Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  Id.  If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.

The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  And although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).

Here, though, no such special referral or consideration is warranted since the regular schedular standards applied in this case adequately describe and provide for the Veteran's psychiatric symptoms and consequent disability level.  Marked interference with employment beyond that contemplated by the schedular criteria has not been shown.  38 C.F.R. §§ 4.1.  The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the Rating Schedule would not adequately compensate him for his service-connected disability.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of this schedule impractical.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993).  As such, special referral for extraschedular consideration is not warranted in this instance.  

Next, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced.  However, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for his disability that can be attributed only to the combined effect of multiple service-connected conditions.  Thus, no basis for referring the case for an extraschedular consideration is presented in this case.

B.  TDIU 

Total disability is considered to exist when there is any impairment that is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a)(1) (2016).  Total ratings are authorized for any disability or combination of disabilities for which the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4, prescribes a 100 percent evaluation.  38 C.F.R. § 3.340(a)(2).

The law also provides that a total disability rating based on individual unemployability due to service-connected disability may be assigned where the veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).  

Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).  Factors to be considered are the veteran's education and employment history and loss of work-related functions due to pain.  Ferraro v. Derwinski, 1 Vet. App. 326, 330, 332 (1991).  Individual unemployability must be determined without regard to any nonservice-connected disabilities or the veteran's advancing age.  38 C.F.R. § 3.341(a).  See also 38 C.F.R. §  4.19 (2015) (age may not be a factor in evaluating service-connected disability or unemployability); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In the current appeal, service connection has been granted for a psychiatric disability; peripheral neuropathy of the bilateral upper and lower extremities; residuals of prostate cancer; diabetes mellitus, type II; tinnitus; erectile dysfunction; hearing loss; and hypertension.  For the reasons set forth above, the Board has awarded a 70 percent rating for the Veteran's psychiatric disability dating back to the award of service connection.  As such, he meets the schedular criteria for consideration under 38 C.F.R. § 4.16(a).  

The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative.  The ultimate question is whether the veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment.  Van Hoose, 4 Vet. App. at 363.  Moreover, as already noted, an inability to work due to non-service-connected disabilities or age may not be considered.  38 C.F.R. §§ 4.14, 4.19.  In making its determination, VA considers such factors as the extent of the service-connected disabilities, and employment and educational background.  38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. 

In this case, the Veteran was awarded a TDIU from July 1, 2008.  Prior to the Board's grant of a 70 percent rating for his psychiatric disability, July 1, 2008, was when the Veteran first met the schedular criteria for a TDIU.  

The Veteran's June 2008 VA Form 21-8940, "Veterans Application for Increased Compensation Based on Unemployability" shows that he completed high school and had no additional training or education.  He reported that he last worked in 2004 as a car salesman.  

Information from the Veteran's former employer dated in September 2008 shows that he retired from his position for medical reasons.  

In the February 2017 rating decision awarding a TDIU, the AMC determined that the Veteran's ability to work was limited by symptoms of mental illness that created deficiencies in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  The AMC determined that the Veteran's symptoms were incompatible with the ability to perform duties at a sufficient pace and duration to maintain substantially gainful employment.  The AMC also determined that the Veteran's other service-connected diabetes mellitus, type II, hearing loss, tinnitus, and residuals of prostate cancer further complicated his ability to perform his usual occupation without uninterrupted breaks and necessary pace.

Based on a review of the evidence, the Board concludes that an award of TDIU prior to July 1, 2008, is warranted.  The Board observes that a TDIU is an element of all initial ratings.  Rice, 22 Vet. App. 447.  In this appeal, the RO/AMC has considered the Veteran's claim for an increased rating for his psychiatric disability to date back to his initial claim.  Therefore, the Board concludes that the Veteran has had a claim for a TDIU dating back to March 14, 2006, the date of service connection for his psychiatric disability.  As a result of this decision, the Veteran has met the schedular criteria for a TDIU since March 14, 2006.  For the reasons discussed above, the Board has concluded that the level of the Veteran's psychiatric impairment has been consistent during this appeal.  As the AMC in awarding a TDIU did so based, in part, on the Veteran's psychiatric disability, the Board concludes that a TDIU is warranted prior to July 1, 2008.

Accordingly, in considering the severity of the Veteran's service-connected disabilities, particularly his anxiety disorder, NOS; the AMC grant of a TDIU; and in affording him the benefit-of-the-doubt, the Board finds that the Veteran is unemployable due to his service-connected disabilities.  The evidence is in favor of the grant of TDIU prior to July 1, 2008.  Entitlement to TDIU prior to July 1, 2008, is therefore granted.  


ORDER

An initial rating of 70 percent for anxiety disorder, NOS is granted for the period prior to September 13, 2012, subject to the law and regulations governing the payment of monetary benefits.

A rating in excess of 70 percent for anxiety disorder, NOS is denied for the period beginning September 13, 2012.

Entitlement to a TDIU prior to July 1, 2008, is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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