Citation Nr: 18142293 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 16-08 434 DATE: October 15, 2018 ORDER A higher initial rating in excess of 10 percent for chronic adjustment disorder with mixed anxiety and depressed mood is denied. FINDING OF FACT For the entire initial rating period on appeal from December 10, 2013, the service-connected chronic adjustment disorder has more nearly approximated 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 continuous medication. CONCLUSION OF LAW For the entire initial rating period on appeal from December 10, 2013, the criteria for a higher initial rating in excess of 10 percent for chronic adjustment disorder with mixed anxiety and depressed mood have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, served on active duty from March 1970 to January 1972. Initial Rating for Adjustment Disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is in receipt of an initial 10 percent rating for chronic adjustment disorder for the entire initial rating period on appeal from December 10, 2013 under Diagnostic Code 9440. 38 C.F.R. § 4.130. The Veteran generally asserts that a higher initial disability rating is warranted. See March 2015 Notice of Disagreement. Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 10 percent rating is assigned for 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 continuous medication. 38 C.F.R. § 4.130. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided 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 and maintaining effective work and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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. Id. A 100 percent rating requires evidence of 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 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. Id. The use of the term “such as” in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period from December 10, 2013, the service-connected chronic adjustment disorder has more nearly approximated 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 continuous medication. The Board further finds that the chronic adjustment disorder has not more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, irritability, chronic sleep impairment, and mild memory loss. For these reasons, a higher initial rating in excess of 10 percent under Diagnostic Code 9440 is not warranted. 38 C.F.R. § 4.130. At an August 2014 VA mental examination, the Veteran reported symptoms of depressed mood, anxiety, irritability, and difficulty sleeping. Upon examination of the Veteran, the VA examiner determined the Veteran had been embellishing his mental health symptoms reported during the August 2014 VA examination. Instead, the VA examiner determined that, when accounting for the embellishment, the Veteran’s actual psychiatric symptoms were best characterized as minimal to mild and result in some difficulty in social and possibly occupational functioning, but that he was generally functioning quite well and has meaningful interpersonal relationships. The VA examiner noted that, while the Veteran minimized relationships with others, he also endorsed having a fair to good relationship with family members, stepchildren, friends, and a strong marital relationship; furthermore, the Veteran worked at the VA and for the U.S. Postal Service with no significant impairment from mental health symptoms leading to termination or any report of missed work secondary to mental health symptoms. The August 2014 VA examiner concluded that the Veteran’s current mental health symptoms would, at most, result in a decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress, and would likely have difficulty interacting with other people and/or difficulty with complications from poor sleep during periods of significant stress that would impact his work performance (criteria for a 10 percent rating). Importantly, the VA examiner noted the Veteran endorsed a highly unusual number of affective, psychotic, neurological, low intelligence, amnestic, and total symptoms on a symptom validity measure, which ultimately revealed a score that was three times the suggested clinical cutoff for screened malingering and well above the VISN 6 recommended cutoff score for malingering. The Veteran underwent another VA examination in February 2017, the examination report for which reflects the VA examiner was unable to determine any mental health disorder diagnosis or comment on related symptoms without resorting to mere speculation. The February 2017 VA examiner noted that the Veteran’s presentation during the examination indicated inaccurate self-reporting of symptoms. Objective psychological tests results conducted during the February 2017 VA examination strongly indicated that the Veteran presented himself to appear more psychologically disturbed than he actually was. The VA examiner provided several examples where the Veteran’s self-report was inconsistent with observed behavior. For example, the Veteran endorsed not being able to sit still in a chair and having to look under his chair often to see if anything is under it; however, the VA examiner observed very little movement from the Veteran during the 45 minute examination. Private treatment records from Dr. E.H. show the Veteran endorsed a number of serious psychiatric symptoms such as nightmares and flashbacks up to three times per week and panic attacks occurring two to three times per week, lasting one to two hours in duration each time. In a November 2013 private medical letter, Dr. E.H. stated the Veteran was diagnosed with chronic posttraumatic stress disorder (PTSD) and chronic major depression. Dr. E.H stated the Veteran’s symptoms included intrusive thoughts, hypervigilance, severely impaired recent memory, working memory 40 percent impaired, and that the Veteran does not socialize. Dr. E.H. also opined that the Veteran was unable to sustain work relationships due to PTSD and is considered permanently and totally disabled and unemployable. However, the private treatment records and medical letters from Dr. E.H. that reflect significant psychiatric symptoms are inconsistent with the Veteran’s own reports during the August 2014 and February 2017 VA examinations, and are inconsistent with the VA examiners’ observations of the Veteran. For example, Dr. E.H. noted the Veteran does not socialize, which is inconsistent with the Veteran’s reports of occasionally socializing with several friends and attending church during the August 2014 and February 2017 VA examinations. Additionally, the February 2017 VA examiner reviewed and addressed the private treatment records from Dr. E.H., with whom the Veteran sought occasional treatment in starting November 2013. The February 2017 VA examiner assessed severe symptoms and major impairment, such as impairment in reality testing and communication (illogical, obscure, irrelevant speech), or major impairment in several areas (avoids friends, neglects family, unable to work). The VA examiner stated that this level of impairment was not evident during the February 2017 VA examination, nor is there evidence that this level of impairment had been experienced in the past based on the Veteran’s self-report of his occupational and social functioning. Moreover, Dr. E.H.’s conclusion that the Veteran was moderately compromised in his ability to sustain social and work relationships is inconsistent with the Veteran’s report of a stable 31-year marriage and retirement following a long career at the U.S. Postal Service. Finally, the February 2017 VA examiner pointed out that Dr. E.H. did not perform any psychological testing during the assessment. Based on the foregoing, the Board finds that the private treatment records and private medical letters from Dr. E.H. are of no probative value in assessing the Veteran’s current psychiatric symptoms. Private treatment records and private medical letters from Dr. J.G. show regular mental health treatment. In a September 2013 private medical letter, Dr. J.G. wrote that the Veteran started treatment in January 2013 for major stress and feelings of depression, which necessitated administration of prescription medication. Dr. J.G. stated the Veteran had been regularly followed since January 2013, that his depression had improved, that his prognosis was good, and that termination of treatment could be possibly contemplated in 10 to 12 months. In a May 2014 private medical letter, Dr. J.G. stated the Veteran had been continuing treatment, that his depression and anxiety had been under control with therapy and prescription medication, that he had made considerable progress, and that prognosis was good but that he would need continued monitoring. The private medical letters from Dr. J.G. indicate the Veteran’s psychiatric symptoms have been improving and are controlled by continuous medication (criteria for a 10 percent rating), and do not indicate that psychiatric symptoms have caused any periods of inability to perform occupational tasks. As Dr. J.G. is the Veteran’s regular treating therapist, the Board finds this evidence highly probative in determining the Veteran’s current psychiatric symptoms. The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of a higher initial disability rating in excess of 10 percent for the service connected chronic adjustment disorder for the entire initial rating period from December 10, 2013. The evidence for record shows the Veteran’s chronic adjustment disorder more nearly approximates 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 continuous medication. The VA examination reports demonstrate the Veteran’s observed behavior was inconsistent with his reports of significant symptoms, which is supported by clinical tests that showed the Veteran was exaggerating his symptoms. On the other hand, private treatment records from Dr. J.G. indicate mild psychiatric symptoms that have been improving with treatment and controlled by continuous medication (criteria for a 10 percent rating). Furthermore, the evidence does not indicate that the chronic adjustment disorder has manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks at any time during the initial rating period on appeal. The Board has considered all of the symptoms discussed above, including their severity, frequency, and duration. In evaluating these symptoms, the Board finds that the severity, frequency, and duration of the chronic adjustment disorder are more appropriately consistent with the symptoms contemplated by the 10 percent disability rating and do not more nearly approximate the symptoms contemplated for a 30 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9440. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial disability rating for chronic adjustment disorder in excess of 10 percent for the entire initial rating period from December 10, 2013 forward. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9440. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel