Citation Nr: 18140388 Decision Date: 10/03/18 Archive Date: 10/02/18 DOCKET NO. 14-32 233A DATE: October 3, 2018 ORDER An initial rating in excess of 50 percent from October 29, 2012, to February 10, 2016, for adjustment disorder with mixed anxiety and depressed mood is denied. FINDING OF FACT The Veteran’s psychiatric disability was consistently manifested by depressed mood, sleep impairment, disturbances of motivation and mood, past homicidal ideation, and impaired impulse control throughout the appeal period; occupational and social impairment with deficiencies in most areas is not shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood from October 29, 2012, to February 10, 2016, have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1965 to July 1968. Service connection for the Veteran’s psychiatric disability was granted at 50 percent disabling, effective October 29, 2012. Subsequently, a 100 percent evaluation was granted, effective February 10, 2016. Accordingly, the Veteran seeks a rating in excess of 50 percent from October 29, 2012, to February 10, 2016. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected psychiatric disability was evaluated at 50 percent disabling from October 29, 2012, to February 10, 2016, under Diagnostic Code 9434 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9434. Under the applicable rating criteria, a 50 percent disability rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability 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 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. Finally, a maximum schedular 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms such 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 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). 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, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, 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. 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 v. Shinseki, 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). When evaluating the level of disability from a mental disorder, VA also 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). Turning to the evidence of record, the Veteran underwent a VA examination in December 2011 where he was diagnosed with adjustment disorder with mixed anxiety and depressed mood. He reported a past history of several psychiatric hospitalizations associated with substance abuse, homicidal ideation, and post-traumatic stress disorder (PTSD), but no recent hospitalizations. He described recurrent dreams of in-service stressors, avoidance, irritability and outbursts of anger, hypervigilance, depressed mood, anxiety, chronic sleep impairment, mild memory loss, diminished interest in activities, social isolation, and difficulty concentrating. The examiner determined that the manifestations of the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. A VA treatment record from December 2011 included a mental status examination at which the Veteran was pleasant, cooperative, well-groomed, and neatly dressed, with no psychomotor retardation or agitation; no abnormal movements; good eye contact; normal speech speed and volume; broad, bright affect; logical thought processes; goal-directed, organized thought content; no hallucinations; no delusions or paranoia; no suicidal or homicidal ideations; grossly intact cognition; good insight and judgment; and orientation to person, place, time, and situation. The Veteran was prescribed Trazodone to help with sleep. Another VA psychiatric evaluation was conducted in January 2013 where the Veteran endorsed symptoms of depressed mood and foreshortened sense of the future; suspiciousness; chronic sleep impairment including interrupted sleep, nightmares, and sweats; disturbances of motivation and mood; past suicidal or homicidal thoughts, ideation, plans, or intent; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and impaired impulse control, including losing his temper and breaking things. He was undergoing no current treatment. Upon examination, the Veteran was alert, cooperative, and neatly dressed; he had an agitated mood at first, which was sad later; his affect was appropriate for his mood; he had no impairment of thought processes or communication; he had no delusions or hallucinations; he displayed appropriate behavior; he was deemed able to maintain personal hygiene and basic activities of daily living; he was oriented to person, place, and time; and his rate and flow of speech were normal. The examiner determined that the frequency and severity of the Veteran’s symptoms manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform. A March 2013 VA treatment record included a negative depression screening. In April 2013, the Veteran continued to endorse symptoms of PTSD, including nightmares and flashbacks, with no suicidal or homicidal intent. A December 2014 treatment record included a negative depression screen. The Veteran underwent another VA examination in February 2016 which indicated a severe worsening of symptoms, resulting in a finding that the Veteran’s psychiatric disability resulted in total occupational and social impairment. The medical evidence of record indicates that the Veteran’s symptoms in the appeal period prior to February 2016 were consistently manifested by depressed mood, sleep impairment, disturbances of motivation and mood, past homicidal ideation, and impaired impulse control. Mental status evaluations, howerver, were normal. The Veteran did not undergo psychiatric therapy, was not hospitalized, and did not take medications to treat his psychiatric disability, other than medication for sleep impairment. The Board finds that this most closely approximates the 50 percent rating awarded during the relevant period. At no time did the Veteran report nor did clinicians note suicidal ideation; obsessional rituals which interfered with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; 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; or disorientation to time or place. As such, a higher evaluation from October 29, 2012, to February 10, 2016, is not warranted. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel