Citation Nr: 1804182 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-50 266 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a disability rating for adjustment disorder with depressed mood higher than 50 percent prior to May 17, 2017, and higher than 70 percent beginning May 17, 2017. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from March 2002 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Jurisdiction over the Veteran's claims was subsequently transferred to the RO in Roanoke, Virginia. The Veteran presented sworn testimony at a hearing before the undersigned in July 2016. A transcript of the hearing is of record. In March 2017, the Board granted entitlement to at least a 50 percent rating for the Veteran's adjustment disorder with depressed mood throughout the period of the claim. The Board remanded the issue of entitlement to a rating higher than 50 percent for additional development. Subsequently, in an August 2017 rating decision, a 70 percent rating was granted for the period beginning May 17, 2017. The record shows the Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Accordingly, the Board has taken jurisdiction over this issue as part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal, the Veteran's adjustment disorder with depressed mood has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; it has not been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to May 17, 2017, the criteria for a 70 percent rating, but not higher, for adjustment disorder with depressed mood, were met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2015); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9440 (2017). 2. Since May 17, 2017, the criteria for a rating higher than 70 percent, for adjustment disorder with depressed mood, have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2015); 38 C.F.R. §§ 4.7, 4.130, DC 9440 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS General Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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. 38 C.F.R. § 4.7 (2017). In increased ratings claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2015); 38 C.F.R. § 3.102 (2017); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Background and Analysis The Veteran's adjustment disorder with depressed mood is rated under the General Rating Formula for Mental Disorders. Under this formula, in pertinent part, 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 and maintaining 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, 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 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9440 (2017). The symptoms considered in determining the level of impairment under the General Rating Formula for Mental Disorders are not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Mauerhan v. Principi, 16 Vet. App. 436 (2002). In its March 2017 decision, referenced above, the Board noted that during the period of the claim, the Veteran's psychiatric symptoms included depressed mood, anxiety, suspiciousness, anhedonia, fatigue, irritability, panic attacks that occurred weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Board observed the Veteran's examiners noted she had difficulty making deadlines at work, resulting in having to attend training and having her work scaled back. The Board also noted the Veteran was withdrawn and anxious most of the time, with little interest in maintaining friendships or close relationships with her family or others. Upon careful review, the Board notes the Veteran's treatment records also show she has intermittently reported suicidal ideation and/or thoughts throughout the period of the claim. For example, as early as March 2006, a VA examination report documents the Veteran's report of occasional passive suicidal thoughts. A September 2008 VA examination report documents chronic thoughts of suicide, occurring almost every day. In this regard, the Board notes that in a recent decision, the U.S. Court of Appeals for Veterans Claims (Court) held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). In light of the Court's decision in Bankhead, and after having resolved all reasonable doubt in favor of the Veteran, the Board has determined that a 70 percent rating is warranted for the period prior to May 17, 2017. In this regard, the Board finds that due to the symptoms summarized above, including the Veteran's reported suicidal thoughts, her service-connected adjustment disorder with depressed mood has most nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, for the period prior to May 17, 2017. However, upon a review of the record, there is no evidence of gross impairment in thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, or own occupation, or own name. The Board also observes that at her March 2017 hearing and at a May 2017 VA examination, the Veteran reported she maintained a relationship with her mother, who moved in with her for a period of time, and continued to check on her approximately every other day. Based on the foregoing, the Board finds the evidence does not show that both the Veteran's occupational and social impairment have been "total" at any time during the period of the claim. Accordingly, the Board has determined a rating higher than 70 percent for the Veteran's adjustment disorder with depressed mood is not warranted for any portion of the period of the claim. ORDER The Board having determined a 70 percent rating is warranted for the Veteran's adjustment disorder with depressed mood for the period prior to May 17, 2017, the benefit sought on appeal is granted to this extent, subject to the criteria applicable to the payment of monetary benefits. Entitlement to a rating higher than 70 percent for adjustment disorder with depressed mood for the period beginning May 17, 2017, is denied. REMAND VA examination reports and outpatient treatment notes show the Veteran has reported she last worked in December 2016, when she was let go after being unable to attend work regularly due to the effects of her service-connected disabilities. As such, the Board finds the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has not submitted any VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), and has not otherwise provided a detailed history of her employment. The AOJ has not undertaken development related to this issue. As such, the Board finds a remand is warranted in order to solicit a completed VA Form 21-8940 from the Veteran detailing her work history, along with any other evidence relevant to the issue of entitlement to a TDIU. Accordingly, this case is REMANDED for the following actions: 1. Solicit a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran, in addition to any other evidence relevant to the issue of entitlement to a TDIU. 2. Readjudicate the claim on appeal, undertaking any additional development deemed necessary. If the benefits sought on appeal remain denied, issue the Veteran and her representative a Statement of the Case or Supplemental Statement of the Case and allow a reasonable period for response. Return the matter to the Board for its review, as appropriate. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until she is otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017). Department of Veterans Affairs