Citation Nr: 18149328 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 13-36 372 DATE: November 9, 2018 ORDER A rating in excess of 50 percent for adjustment disorder with depressed mood is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s adjustment disorder with depressed mood was manifested by occupational and social impairment with reduced reliability and productivity due to his psychiatric symptomatology, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for adjustment disorder with depressed mood have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to December 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board notes that an August 2018 rating decision denied service connection for sleep apnea. Thereafter, the Veteran entered a notice of disagreement as to such denial in September 2018. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the Agency of Original Jurisdiction (AOJ). As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. The Board further observes that, following the issuance of the October 2017 supplemental statement of the case, additional evidence consisting of a VA examination pertaining to sleep apnea and VA treatment records was associated with the file. However, such records are either irrelevant to the issues before the Board or contain information that is duplicative of that previously considered by the AOJ. Therefore, there is no prejudice to the Veteran in the Board proceeding with the adjudication of the Veteran’s claims at this time. 38 C.F.R. § 20.1304(c). 1. Entitlement to a rating in excess of 50 percent for adjustment disorder with depressed mood. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected adjustment disorder with depressed mood, hereinafter referred to as adjustment disorder, is evaluated as 50 percent disabling, pursuant to DC 9440, which provides that such disability is rated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent 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 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 rating is warranted where 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; 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. A 100 percent rating is warranted when there is 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; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the general rating formula “indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug., 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). The appeal period before the Board begins on November 15, 2012, the date VA received the Veteran’s claim for an increased rating, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The pertinent evidence of record consists of VA examinations conducted in January 2013 and July 2016, VA treatment records, Social Security Administration (SSA) records, vocational rehabilitation records, and lay statements from the Veteran. The Board finds that a rating in excess of 50 percent for adjustment disorder is not warranted at any point pertinent to the appeal period as the evidence fails to show that such disability is manifested by more severe symptomatology that results in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Specifically, there is no evidence, either lay or medical, to establish the presence of symptoms of the type and severity necessary to warrant a higher rating. More importantly, there is no indication that the Veteran’s adjustment disorder symptoms resulted 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: 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; 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. Regarding the Veteran’s social relationships, he has been divorced twice and lived with his sister. See January 2013 and July 2016 VA examination reports, and August 2018 divorce decree. He denied having any social activity outside of his family, reported that he watched TV during the days, and indicated that he had verbal altercations with some of his family. See January 2013 VA examination report; August 2015 Board hearing. However, he reported supportive relationships with his uncle, his sister, and teenage daughter who lived with him. See id.; May 2018 VA treatment record. Turning to occupational impairment, the Veteran testified that he had difficulty maintaining full-time employment and previously worked as an automotive technician. In this regard, he reported that it was hard for him to be around people, he had a short fuse, and he could be violent or irritated. An April 2015 vocational rehabilitation record indicates that the Veteran recently completed a collision and auto body paint certificate program, but was unable to find work. During an July 2016 VA examination, he reported that he was fired from his most recent employment in 2014 and he was not able to get along with other people. Subsequent VA treatment records likewise reflect that the Veteran had difficulty with interpersonal interactions at work and was uncertain how long he would be able to function in his current work setting. Furthermore, the Board finds that the symptoms the Veteran described to the 2013 and 2016 VA examiners, his treatment providers, and in statements, including, but not limited to, depressed mood, irritability, isolation, intrusive memories, panic attacks, sleep impairment, flattened affect, disturbances of motivation and mood, suicidal ideation, and impaired ability to interact with others, and their resulting impact on his social and occupational functioning are contemplated by the currently assigned 50 percent rating. Moreover, the January 2013 VA examiner found that the Veteran’s symptomatology was reflective of mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, which is commensurate with a lesser 10 percent rating. The July 2016 VA examiner concluded that the Veteran’s symptoms did not meet the diagnostic criteria for adjustment disorder. Moreover, the examiner explained that the Veteran’s symptoms reported were not sufficient to meet the diagnostic criteria for any mental disorder related to his military service. The Board notes that the Veteran’s representative argues that the Veteran has more severe psychiatric symptoms not adequately assessed by VA examinations. In this regard, the Board notes that the Veteran had several additional psychiatric diagnoses, to include depressive disorder, personality disorder, posttraumatic stress disorder (PTSD), alcohol use disorder, and tobacco use disorder. However, as stated above, the July 2016 VA examiner concluded that the Veteran’s symptoms reported were not sufficient to meet the diagnostic criteria for any mental disorder related to his military service. Furthermore, the Board is aware that the Veteran occasionally endorsed suicidal ideation during the appeal period and the Court has held that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead, supra (the language of the regulation 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 with deficiencies in most areas). However, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected psychiatric disability. Here, the Veteran occasionally endorsed suicidal and homicidal ideation, but also routinely denied intent. For instance, in February 2013, he reported some suicidal ideation, but denied any intent or plan, and denied homicidal or suicidal ideation shortly thereafter. See March 2013, April 2013, and May 2013 VA treatment records. Moreover, in February 2014 and December 2015, while he reported daily suicidal or homicidal thoughts, he denied intent or plan, and indicated that his daughter was his major deterrent. Subsequent VA treatment records likewise reflect that he reported thoughts of harm towards himself and others, but without a plan or intent to harm any specific person. Ultimately, while the Veteran did report suicidal and homicidal ideation, which are contemplated under the criteria for a 70 percent rating, the Board finds that such symptomatology was not of a frequency, severity, and duration so as to result in deficiencies in most areas as indicated by his ability to maintain close relationships, execute proper judgment, and maintain an appropriate mood and affect. Thus, the Board finds that the Veteran’s psychiatric symptoms have not resulted in occupational and social impairment with deficiencies in most areas at any point during the appeal. Ratings in excess of 70 percent are similarly not warranted as the evidence discussed above does not indicate that the Veteran’s psychiatric symptoms caused total social and occupational impairment. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected adjustment disorder; however, the Board finds that his symptomatology referable to such disability have been stable throughout the entirety of the appeal period. Therefore, assigning staged ratings for is not warranted. Further, with the exception of the raised issue of entitlement to a TDIU, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Therefore, based on the foregoing, the Board finds that a rating in excess of 50 percent for adjustment disorder is not warranted. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a TDIU. As indicated, the Board previously found that the claim of entitlement to a TDIU was raised in connection with the Veteran’s claim for an increased rating for his adjustment disorder. Therefore, the Board has considered whether a TDIU is warranted at any time pertinent to his November 15, 2012, claim. Since November 15, 2012, the Veteran has met the schedular threshold criteria for a TDIU as defined in 38 C.F.R. § 4.16 (a). In this regard, as of such date, the Veteran is service-connected for adjustment disorder, evaluated as 50 percent disabling; a right ankle disability, evaluated as 10 percent disabling; and a right ankle scar, evaluated as noncompensably disabling. As such, for the entire appeal period, the Veteran had a combined rating of 60 percent. Pursuant to 38 C.F.R. § 4.16(a), for the purpose of one 60 percent disability, disabilities resulting from common etiology or a single accident will be considered as one disability. Consequently, as all of the Veteran’s service-connected disabilities are secondary to his service-connected right ankle disability, such are considered to result from a common etiology and, therefore, may be considered as one disability for TDIU purposes. Therefore, the Board finds that the Veteran has met the schedular threshold criteria for a TDIU for the duration of the appeal period. The Board notes that, pursuant to the Board’s January 2016 remand, the Veteran submitted a Veteran’s Application for Increased Compensation based on Unemployability (VA Form 21-8940) in March 2016, wherein he reported that he last worked full-time from April 2012 to August 2012. However, he reported at the January 2013 VA examination that he had been working for the prior month, and SSA records indicate that the Veteran reported that he became too disabled to work as of May 2013. Moreover, in June 2014, the Veteran reported that he worked full-time at an automotive shop and, in October 2017, it was noted that he worked for the city of Little Rock. Additionally, in December 2015 and May 2018, the Veteran indicated that he continued to work full-time. Therefore, it is unclear as to whether the Veteran has ceased working. As eligibility for a TDIU is contingent on his ability to obtain and maintain substantially gainful employment, clarification of the Veteran’s employment history is required. Therefore, the claim must be remanded in order to request that he submit an updated VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) and report specific start and end dates for each employer, to include any dates of self-employment and his income for all positions held, since August 2012. Thereafter, the AOJ should contact the employers identified by the Veteran and ask them to complete VA Form 21-4192, or other appropriate form, detailing the dates of the Veteran’s employment and the reasons that he stopped working. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he complete and return a VA Form 21-8940, listing his complete employment history since August 2012, to include specific start and end dates for each employer, any dates of self-employment, and income from all positions held. 2. After receiving a response from the Veteran in connection with the directive in the above paragraph, the AOJ should contact the Veteran’s employers, and ask them to complete and return VA Form 21-4192, or other appropriate form, detailing the dates of the Veteran’s employment and the reasons that he stopped working. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel