Citation Nr: 18159082 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-19 775A DATE: December 18, 2018 ORDER Entitlement to an effective date prior to July 29, 2011 for the grant of service connection for adjustment disorder with anxiety is denied. Entitlement to a rating in excess of 30 percent for adjustment disorder with anxiety prior to November 14, 2018 is denied. Entitlement to a rating in excess of 50 percent for adjustment disorder with anxiety from November 14, 2018 is denied. Entitlement to a total disability rating for individual unemployability is denied. FINDINGS OF FACT 1. No formal or informal claim of entitlement to service connection for adjustment disorder with anxiety was received prior to July 29, 2011. 2. Prior to November 14, 2018, adjustment disorder with anxiety was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. From November 14, 2018, adjustment disorder with anxiety was manifested by occupational and social impairment with reduced reliability and productivity. 4. The Veteran is not unable to secure and follow a substantially gainful occupation by reason of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 29, 2011 for the grant of service connection for adjustment disorder with anxiety have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. Prior to November 14, 2018, the criteria for a rating in excess of 30 percent for adjustment disorder with anxiety have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130 (2017). 3. From November 14, 2018, the criteria for a rating in excess of 50 percent for adjustment disorder with anxiety have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.130 (2017). 4. The requirements for entitlement to a total disability rating for individual unemployability rating have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1979 to December 1987. 1. Entitlement to an effective date prior to July 29, 2011 for the grant of service connection for adjustment disorder with anxiety Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Veteran contends that she is entitled to an earlier effective date for the grant of service connection for adjustment disorder with anxiety. Effective dates are based upon a variety of factors, to include dates of service, facts found and date of receipt of a claim. 38 U.S.C. § 5110. The Veteran initially filed a claim for compensation for stress disorder, and other disabilities, on July 29, 2011. The Veteran was granted service connection for adjustment disorder with anxiety, effective this date. This was the Veteran’s original claim for compensation, which was filed more than one year after separation. Therefore, entitlement to an earlier effective date for the grant of service connection for adjustment disorder with anxiety is not warranted. Rating 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 (2017); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Adjustment disorder with anxiety is rated pursuant to 38 C.F.R. § 4.130. This provides that adjustment disorder with anxiety should be rated under the general rating formula for evaluating psychiatric disabilities other than eating disorders. Under the general formula, a 30 percent rating is warranted for occupational and social impairment with an 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 a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is assigned 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 work-like setting); and inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) 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.” Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran has been assigned staged ratings. 2. Entitlement to a rating in excess of 30 percent for adjustment disorder with anxiety prior to November 14, 2018 The Veteran’s adjustment disorder with anxiety is currently assigned a 30 percent rating, prior to November 14, 2018, effective July 29, 2011. The Veteran seeks a higher initial rating. After filing her claim, the Veteran attended a VA examination in March 2013. During the examination, the Veteran reported that she is quite anxious, especially when driving or when in larger groups. She also reported that her sleep is good. The Veteran was not found to have PTSD, but was diagnosed with adjustment disorder with anxiety. The examiner described the Veteran’s level of impairment occupational and social impairment with reduced reliability and productivity. However, the examiner clarified that this opinion was for the period at the end of the Veteran’s civilian employment in 2009, and not presently. In the section of the report in which the examiner was to identify symptoms for rating purposes, the examiner identified anxiety and suspiciousness. The examiner noted the Veteran’s affect was broad, that she denied suicidal thoughts presently or in past, and no perceptual disturbances were indicated. The Veteran was evaluated by a psychologist in February 2014 as part of a Social Security Administration disability claim. During this examination, the Veteran endorsed “symptoms of PTSD, such as avoidance of other people and anxiety around others to have begun in 2012”. She reported that “she no longer socializes with people as she is avoidant of other due to distrust.” The Veteran also reported being able to take care of household tasks, but that it takes her longer than it used to due to pain from her physical disabilities. “She reported that she is frequently late to her appointments, in contrast to her having been very punctual due to her job duties in the past. She asserts that she makes attempts to shop but that it is her difficulty with lifting that makes it hard for her to complete the task. She also asserts that she no longer goes out to socialize or take trips as she cannot travel by herself as she is too anxious. She endorsed a history of panic attacks, apparently every other day, which preclude her from many activities.” The examiner performed a mental status examination and determined the Veteran’ spoke with a normal rate and flow, was free of delusional or hallucinatory ideation, her immediate and delayed recall were good, and her attention and concentration were fair. The Veteran endorsed suicidal ideation in the past with no plan or attempt, but did not identify when. Judgment was deemed poor, because she would “holler fire, find someone to put it out, or call for help” upon seeing a fire in a crowded theater. However, the examiner acknowledged the Veteran may have meant alerting management when getting someone to call for help. In assessing the Veteran’s credibility, the examiner stated the Veteran’ statements and portrayal of symptoms appear largely consistent with depressed mood resulting from loss of physical abilities, but went on to state that it would have been valuable to view the doctor’s order that required her to stop working due to her physical disabilities, and that “[t]here were a few inconsistencies in her statements, including her inability to determine if her depressed mood was impacted by use of antidepressant medication, and the late onset of symptoms of PTSD. She is not prescribed any medications for depressed mood at present, though claiming significant depression while receiving medical treatment by a doctor.” The examiner opined it is at least as likely as not that the Veteran’s depressed mood and PTSD will have a moderate-to-severe impact on her work life. The Veteran was afforded a VA mental disorders examination in October 2014. The Veteran’s primary complaints included anxious mood, often being “overwhelmed with stress” though with non-specific content, intermittent periods of low mood, mild anhedonia, decreased libido, mild irritability and panic attacks. The examiner characterized the Veteran’s level of impairment as 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. The examiner noted, “She is currently maintained on psychotropic medication”, and she meets a VA psychiatrist, but is not currently participating in psychotherapy. Symptoms noted were depressed mood, anxiety, suspiciousness and panic attacks that occur weekly or less often. The examiner observed the Veteran’s affect to be stable and euthymic, her speech was clear and coherent, she denied any suicidal or homicidal ideation, intent or plan. The Veteran reported full and independent management of her activities of daily living, and drove to this appointment. No current hallucinations or delusions were reported. On November 14, 2018, the Veteran attended another VA mental disorders examination. Upon examination, the Veteran’s immediate memory and delayed recall were good, communication skills were good, thoughts were clear and logical and there were no signs of delusions, hallucinations, suicidal or homicidal ideation. The Veteran reported that “[s]he is very limited because of her health (especially pain) and she mostly stays in her room and watches television. She has not been to church this year even though she loves the pastor and his wife. She has not been keeping in touch with friends.” She also reported panic attacks at times, and more trouble sleeping in the past two weeks. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, and difficulty in establishing and maintaining effective work and social relationships. In a section for attention, concentration and memory, the examiner noted recurrent and distressing recollections of the past, and difficulty concentration, impede the encoding of information into memory and would have a mild effect on this area of functioning. However, the examiner did not state the Veteran suffers from a short-term or long-term memory impairment. It was also noted the Veteran had not received mental health treatment in two years. The examiner found the Veteran’s depressive symptoms are worse now, but that her anxiety has stayed “pretty constant for many years.” The examiner described the Veteran’s level of impairment as occupational and social impairment with reduced reliability and productivity. The examiner also opined “the ability of this Veteran to obtain and sustain employment consistent with education and vocational experience is Severely impaired.” However, the examiner did not state when this degree impairment began or cite specific past evidence in support of the opinions provided. In light of this, and the limited evidence leading up to this examination, it is not factually ascertainable when symptomology warranting a 50 percent rating began, other than the date of the report. A review of the examination reports does not support a higher rating prior to November 14, 2018. The Veteran’s symptoms are consistently characterized as no worse than depressed mood, anxiety, suspiciousness mild irritability and panic attacks. The November 14, 2018 examination, includes an additional symptom of difficulty in establishing and maintaining effective work and social relationships. However, as noted above, the examiner did not identify when this symptom developed. With the exception of panic attacks occurring more than once a week, the Veteran’s symptoms have consistently resembled symptomology consistent with a thirty percent rating. In an April 2018 statement, the Veteran reported additional symptoms including trouble remembering things and not sleeping well. Notably, mild memory loss and chronic sleep impairment are symptoms consistent with a thirty percent rating. Similarly, the Veteran’s treatment records are relatively consistent with the evidence addressed above and also do not support a higher rating. However, the Veteran’s treatment records do reveal inconsistencies in the Veteran’s reporting. Of particular note, the Veteran reported during her February 2014 SSA examination that “she no longer socializes with people as she is avoidant of others due to distrust”. See February 16, 2004 examination report (emphasis added). The examiner relied on this to opine the Veteran would likely have difficulty dealing with the usual stresses encountered in competitive work. However, the Veteran’s reporting during this examination directly conflicts with a May 2014 treatment record. During a May 19, 2014 mental health consultation, the Veteran reported a tendency to isolate at times. Yet, it was also noted that she continues to enjoy reading, shopping and socializing with friends. Considering this, and the inconsistencies cited by the February 2014 examiner, the Board finds the February 2014 examination report to be of less probative value than the VA examinations. In light of the above, a rating in excess of 30 percent for adjustment disorder with anxiety prior to November 14, 2018 is not warranted 3. Entitlement to a rating in excess of 50 percent for adjustment disorder with anxiety from November 14, 2018 As noted above, the November 14, 2018 VA examiner found the Veteran to have occupational and social impairment with reduced reliability and productivity. The Agency of Original Jurisdiction granted a 50 percent rating based on the November 2018 examination report. See November 15, 2018 rating decision. The Veteran’s representative, citing much of the evidence discussed above, contends a 70 percent rating is warranted. See Correspondence received April 3, 2018. “In summary, at least the following 70% criteria are present: near-continuous panic and depression affecting the ability to function effectively; impaired impulse control; difficulty in adapting to stressful circumstances, including work or a worklike setting; and an inability to establish and maintain effective relationships.” In adjudicating the Veteran’s claims, the Board must assess the competence and credibility of lay statements. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what she observes. See Layno v. Brown, 6 Vet. App. 465 (1994). However, competent and consistent evidence concerning the nature of the Veteran’s acquired psychiatric disability has been provided by medical personnel. The medical findings directly address the criteria under which loss of user is evaluated. As such, the Board finds the medical records to be the most probative evidence with regard to the Veteran’s claims. As discussed above, the evidence of record does not support the Veteran’s representative’s contention. The November 2018 examiner came to different conclusions and there are no treatment records after November 14, 2018. Furthermore, the Veteran herself has not reported symptoms consistent with the representative’s contention. In light of the above, a rating in excess of 50 percent for adjustment disorder with anxiety from November 14, 2018 is not warranted. 4. Entitlement to a total disability rating for individual unemployability The Veteran asserts that she is unable to secure and follow a substantially gainful occupation as a result of her service-connected disabilities. i. Law VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with her education and occupational experience, by reason of her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a Veteran does not meet this rating criteria, as in this case, a total disability may still be assigned. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Services, (Director) for extraschedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage of standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b) The Court has held that the central inquiry in determining whether a Veteran is entitled to a TDIU is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether a Veteran, as a result of her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with her educational and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. The Board also notes that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). ii. Analysis Upon review of the evidence of record, the Board finds referral to the Director is not warranted. The Board notes the Veteran has not worked since 2009. The Veteran has consistently reported this her last employment involved working in a stressful environment. However, the record makes clear that the Veteran stopped working due to physical impairments caused by non-service connected disabilities. See, e.g., February 2014 examination (“ordered by her physician to stop working as a result of the inability to carry the required materials”). The Veteran’s representative has sought to bring particular attention to the February 2014 SSA examination and the November 2018 VA examination to establish the Veteran is unable to secure and follow a substantially gainful occupation as a result of her service-connected disability alone. The February 2014 examiner opined the Veteran’s acquired psychiatric disorder will have a moderate-to severe impact on her work life. However, a review of the examiner’s report does not support the Veteran is unable to secure and follow a substantially gainful occupation solely as a result of her service connected adjustment disorder. To the contrary, after noting the Veteran’s report that she will unlikely be able to maintain regular attendance in a work place due to pain, the examiner stated, “In terms of depressed mood and attending work, it is likely that the claimant would have improvement in mood symptoms if she were able to be gainfully employed.” Furthermore, as noted above, the Veteran reported during her October 2014 VA examination that she had full and independent management of her activities of daily living. The November 2018 examiner opined “the ability of this Veteran to obtain and sustain employment consistent with education and vocational experience is Severely impaired.” The examiner emphasized “these findings can be considered estimates of impairment.” The examiner did not opine the Veteran was unable to obtain and sustain employment. Upon review of the examiner’s report, this is justified as the examiner’s findings do not preclude the Veteran’s ability to perform non-production jobs that require little or no interaction with others.   A review of the remaining evidence does not support referral to the Director. The strongest evidence in support of such action is the November 2018 VA examination report, but as discussed above, this does not warrant referral. In light of the above, entitlement to a total disability rating for individual unemployability is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel