Citation Nr: 1606229	
Decision Date: 02/18/16    Archive Date: 03/01/16

DOCKET NO.  10-30 788	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an extraschedular evaluation for adjustment disorder with anxiety and depressed mood.  

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


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Steve Ginski, Associate Counsel



INTRODUCTION

The Veteran served on active duty in the U.S. Army from October 1979 to October 1982, with additional service in the United States Army Reserves.  

This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

During the course of the appeal, the Board granted a 50 percent initial schedular rating for adjustment disorder with anxiety and depressed mood, but remanded the case in June 2011 for extraschedular consideration of the increased rating claim and the TDIU claim.  In March 2015, the Board again remanded the claims for extraschedular consideration pursuant to 38 C.F.R. §§ 3.321 and 4.16(b).  The Board directed that the claims be referred to the Director of Compensation and Pension for extraschedular consideration.  These actions completed, the claims have been returned to the Board for appellate consideration.


FINDINGS OF FACT

1.  All symptoms and associated impairment of the Veteran's adjustment disorder with anxiety and depressed mood are encompassed by the criteria for the 50 percent rating assigned; an exceptional or unusual disability picture rendering the application of the schedular standards impractical is not shown.  

2.  Resolving reasonable doubt in the Veteran's favor, her service-connected adjustment disorder with anxiety and depressed mood render her unable to secure or follow a substantially gainful occupation.  


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CONCLUSIONS OF LAW

1.  The criteria for an extraschedular rating in excess of 50 percent for the Veteran's adjustment disorder with anxiety and depressed mood have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.126, 4.130, Diagnostic Code (DC) 9440(2015).

2.  The criteria for entitlement to a TDIU have been met. 38 U.S.C.A. § 1155, 5107 (West 2014); 38 C.F.R. §§ 3.3102, 3.321, 3.340, 3.341, 4.16 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2014).  VA provided adequate notice in a letter sent to the Veteran.

Next, VA has a duty to assist the claimant in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  
      
With regard to the issues decided in the instant document, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The RO has obtained service and VA treatment records, as well as private treatment records and records from the Social Security Administration.  Also, VA afforded the Veteran relevant examinations in April 2009, April 2012, and July 2014.  That resulting reports describe the Veteran's appealed disability, reflect consideration of the relevant history, and provide an adequate rationale for the conclusions reached.  The Board finds them collectively adequate for adjudication purposes.   See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  

Next, the Board finds that there has been substantial compliance with the remand directives of the March 2015 Board remand.  At that time, the Board directed that the Veteran's claims for an extraschedular rating for adjustment disorder and for a TDIU on an extraschedular basis be referred to the Director, Compensation and Pension Service, for extraschedular evaluation under 38 C.F.R. §§ 3.321 and 4.16(b), respectively.  These actions were completed in an August 2015 administrative review.  Thus, the Board finds that there has been substantial compliance with the Board's March 2015 remand, and appellate review may proceed without prejudice to the Veteran.  Stegall v. West, 11 Vet. App. 268 (1998).

II.  Extraschedular Consideration for Adjustment Disorder with Anxiety and Depressed Mood

The Veteran seeks an extraschedular rating for her service-connected adjustment disorder with anxiety and depression. 

The Veteran's psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9440.  This diagnostic code uses the general rating formula for mental disorders, which provides that a 50 percent disability rating is warranted for a mental disorder when 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; and difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9440 (2015).

A 70 percent disability rating is warranted for a mental disorder when 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 work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9440.

In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1).  "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." Id. 

More specifically, extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009).  The first element requires a finding that the evidence "presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate." See id. at 115.  In order to determine whether a disability is "exceptional or unusual," there "must be a comparison between 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." Id.   "[I]f the [rating] criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, [and] the assigned schedular evaluation is, therefore adequate, and no referral is required." Id.  

For the following reasons, the Board finds the rating criteria for the Veteran's service-connected adjustment disorder with anxiety and depression reasonably describe her disability level and symptomatology as reflected in her complaints and clinical findings; thus, her disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  See Thun v. Peake, 22 Vet. App. at 115.  

In an August 2015 decision, the Director of Compensation Service denied, in part, an extraschedular evaluation for the Veteran's mental disorder under 38 C.F.R. § 3.321.  The Director found that the evidence failed to show an exceptional disability pattern for the Veteran's mental disorder that rendered the application of the regular rating criteria as impractical.  The extent of occupational and social impairment and symptomatology included anxiety, depression, sleep disturbance, and memory impairment.  The Director found that these symptoms were appropriately evaluated as 50 percent disabling and that an exceptional or unusual disability picture was not demonstrated.  

The Board has thoroughly reviewed the evidence of record, including VA examinations from April 2009, April 2012, and July 2014, and VA treatment records back to 2000.  The symptoms noted in these examinations included depressed mood, anxiety, sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or work-like setting, suicidal ideation, anhedonia, worthlessness, and low energy.  The Board finds that the symptoms of the Veteran's psychiatric condition are contemplated in the schedular criteria, and that as a result, the schedular criteria are adequate to evaluate her disability and extraschedular consideration is not warranted.

In summary, the Board concludes that the preponderance of the evidence is against the grant of an extraschedular rating for the Veteran's adjustment disorder with anxiety and depression. There is no reasonable doubt to be resolved in this matter. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2015); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


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III. Extraschedular TDIU

A total rating based on unemployability is warranted when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). 

Generally, a total rating for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. Part 3, §§ 3 .340, 4.16(a).
However, a total rating based on individual unemployability may still be assigned to a veteran who fails to meet the percentage standards if he is unemployable by reason of his service-connected disabilities.  If a Veteran is found to be unemployable solely due to his service connected disabilities, then the case is to be referred to the Director of Compensation and Pension for extraschedular consideration.  The question therefore becomes whether or not the Veteran is unable to secure or follow a substantially gainful occupation solely due to service connected disabilities. 38 C.F.R. § 4.16(b).

The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also id. at 363.

In this case, service connection has been established for the Veteran's psychiatric disability only.  This disability is evaluated as 50 percent disabling.  As service connection is in effect for only one disability with a 50 percent evaluation, the Veteran does not meet the requirements for consideration for TDIU on a schedular basis. 38 C.F.R. § 4.16(a).

However, the Veteran is still eligible for TDIU on an extraschedular basis.  As noted earlier, the Director, Compensation and Pension Service, found that the Veteran was not entitled to TDIU on an extraschedular basis.  The Board will now review the matter de novo.  

In the April 2012 VA examination, the examiner cited to her interview with the Veteran, her review of the electronic medical records, and the Veteran's claims folder, in forming her conclusion that the Veteran's mental health related symptoms of adjustment disorder were at such a significant level that they would make finding suitable employment and providing reliable, consistent work very difficult and would potentially exacerbate the Veteran's existing adjustment disorder.  The Board finds this opinion highly probative as the opinion is substantiated by an in-depth knowledge of the Veteran's medical history, a thorough clinical interview with the Veteran, and a detailed rationale.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008).  

In addition, the April 2009 opinion does not explicitly address whether the Veteran's adjustment disorder renders her unable to secure or follow a substantially gainful occupation, though the examiner does point to various deficiencies in the Veteran's life that would manifest in difficulty in securing or following substantially gainful employment.  In the July 2014 VA examination, the examiner did not address unemployability.  

Therefore, in the absence of probative evidence against the Veteran's claim, and after consideration of the competent and probative opinion contained in the April 2012 VA examination, as well as resolving reasonable doubt in the Veteran's favor, the Board concludes that the Veteran's service-connected adjustment disorder with anxiety and depression renders the her unable to secure or follow a substantially gainful occupation.  The Board finds that the Veteran is precluded from obtaining substantially gainful employment due to her service-connected mental disorder on an extraschedular basis.  Accordingly, entitlement to a TDIU on an extraschedular basis is warranted. 


ORDER

Entitlement to an extraschedular rating for the Veteran's service-connected adjustment disorder with anxiety and depression is denied.  

Entitlement to an extraschedular TDIU is granted.  





______________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs