Citation Nr: 18141583 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 16-30 122 DATE: October 11, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for adjustment disorder with depressed mood is denied. REMANDED Entitlement to an initial compensable rating for status post left partial patella tear (hereinafter “left knee disability”) is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that 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. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for adjustment disorder with depressed mood are not met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2011 to February 2012. 1. Entitlement to an initial rating in excess of 50 percent for adjustment disorder with depressed mood. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. A Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s adjustment disorder, like all psychiatric disorders, is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a 50 percent rating is warranted for a mental disorder that results in 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 rating of 70 percent is warranted for a mental disorder that 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; 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. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Importantly, evaluations under § 4.130 are symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. The Board notes however that the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating and are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, 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. Mauerhan, 16 Vet. App. at 443. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran is currently assigned an initial disability rating of 50 percent for his service-connected adjustment disorder with depressed mood. He asserts that he is entitled to a higher rating for that disability. As will be discussed more fully below, the Board finds that the Veteran’s psychiatric symptomatology does not approximate the criteria for a higher 70 percent rating. In pertinent part, in August 2013, the Veteran underwent a VA examination to evaluate his psychiatric disability. The examiner diagnosed adjustment disorder with depressed mood and indicated that the adjustment disorder was a direct consequence of the Veteran’s knee problems and its impact on his military career. Upon evaluation, the Veteran’s psychiatric disability was found to be manifested by the following symptoms: depression, chronic sleep impairment, disturbance of motivation and mood, difficulty establishing and maintaining effective work and social relationships, anhedonia, and sense of helplessness, worthlessness, and hopelessness. The Veteran also reported inattention and lack of concentration. The examiner opined that these symptoms resulted in 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 medication. In April and May 2014, the Veteran received private psychiatric treatment. His mental status examination was largely unremarkable and he showed no suicidal/homicidal ideations. He demonstrated symptoms of depression, stress, anxiety, sleep problems, hypervigilance, irritability, problems with motivation, and recurring feelings of guilt and fear. VA treatment records document the Veteran’s reports of continued sleep difficulty. The Board acknowledges that the Veteran has not been afforded a VA examination since August 2013. Nevertheless, while a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination, the mere passage of time does not require VA to provide a new medical examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). Thus, as the Veteran has not otherwise indicated that his adjustment disorder has worsened and as he has not presented any evidence of worsening symptomatology since his August 2013 VA examination, a new VA examination is not necessary. The Board is satisfied that the medical evidence of record adequately addresses the Veteran’s current level of impairment. Based on the foregoing evidence, the Board finds that an increased rating is not warranted. The Veteran’s adjustment disorder has not demonstrated symptomatology reflective of the criteria for a 70 percent rating. Specifically, the Veteran has not been shown to exhibit 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 or other symptoms approximating the criteria for a 70 percent schedular rating. Moreover, the psychiatric symptoms that the Veteran does experience are not shown to be similar in severity, frequency, or duration as those required for a higher schedular rating. As noted above, the August 2013 VA examiner opined that the Veteran’s psychiatric symptoms manifested in occupational and social impairment due to mild or transient symptoms, which is actually commensurate with a disability rating less than the currently assigned 50 percent disability rating. As such, an initial rating in excess of 50 percent for adjustment disorder is denied. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a left knee disability is remanded. The Veteran was last afforded a VA evaluation to assess his service-connected left knee disability in August 2013. Subsequent to this evaluation, the Veteran has reported increased pain in his left knee. See January 2014 VA treatment records. Accordingly, the Board finds that VA’s duty to assist necessitates that this claim be remanded to schedule a new VA examination. The matter is REMANDED for the following actions: 1. Make reasonable efforts to obtain any outstanding and relevant VA or private treatment records. With the Veteran’s assistance, if necessary, obtain copies of any pertinent records and add them to the claims file. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. Following the records development above, obtain a VA examination from an appropriate examiner to determine the current severity of the Veteran’s service-connected left knee disability. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner as part of the examination. All indicated tests should be accomplished and all clinical findings reported in detail. The examiner is asked to fully describe the current severity of the Veteran’s left knee disability including all objective manifestations. a) To be compliant with Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the examiner must address range of motion loss specifically due to pain and any functional loss during flare-ups. The examiner is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited range of motion caused by functional loss during a flare-up as well as after repeated use over time. b) To comply with Correia v. McDonald, 28 Vet. App. 158, 170 (2016), testing of the range of motion must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges, if possible, obtain ranged of motion of the opposite undamaged joint. If such are not applicable, the examiner should state such along with an explanation. c) If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the clinician must provide an adequate explanation as to why. d) The examiner should also comment on the functional impairment caused by the Veteran’s service connected left knee disability. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel