Citation Nr: 1821628 Decision Date: 04/10/18 Archive Date: 04/19/18 DOCKET NO. 12-06 438 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for chronic adjustment disorder with mixed anxity and depression. 2. Entitlement to total disability rating for individual unemployability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2006 to November 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. A videoconference hearing in this matter was held before the undersigned Veteran's law judge in August 2012. The transcript is of record. This case was previously before the Board in June 2014, at which time it was remanded for further development. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The Veteran's chronic adjustment disorder is no longer active, and his current symptoms are due to a personality disorder and substance abuse disorder. 2. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for chronic adjustment disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9440 (2017). 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS All duties under VCAA have been met. During the hearing, the VLJ clarified the issues, asked if there was any outstanding evidence, explained the concept of ratings, held the file open so as to provide an opportunity to submit evidence, and identified potential evidentiary defects. The actions of the VLJ comply with 38 C.F.R. § 3.103. I. Rating for Chronic Adjustment Disorder Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 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 upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency 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. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evaluations may be assigned for separate periods based on the facts found during the appeal period. This practice is known as staged ratings. 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 is rated under DC 9440, which is rated according to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is "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, mild memory loss (such as forgetting names, directions, recent events). Id. 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 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." 38 C.F.R. § 4.130, DC 9440. A 70 percent rating is warranted when 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; 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. 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 name." Id. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Veteran must demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran is currently rated at 30 percent, but he asserts that this rating does not accurately depict the severity of his condition. Throughout the period on appeal, the Veteran has reported sleep impairment, depressed mood, angry outbursts, and poor memory. At his hearing in August 2012, he reported having mood swings and getting into arguments easily. His wife submitted a statement in June 2012 stating that the Veteran has nightmares at least once a week, is angry and argues about almost everything, and has a poor memory. The Veteran was provided with VA examinations in September 2010 and July 2016. In September 2010, the examiner noted the Veteran's reports of nightmares and issues with anger management. The examiner found that the Veteran's marriage was stable and that he had a good relationship with his daughter, but that he did not have friends outside of his family. The Veteran also reported depression, and the examiner found that the Veteran met seven of nine criteria for a major depressive disorder. The examiner diagnosed the Veteran with chronic adjustment disorder mixed with anxiety and depression. Treatment notes from December 2010 note that the Veteran reported suicidal ideation, but that "it was fairly evident that [the Veteran] did not have any intentions of harming himself. His thoughts were focused on his family and the future. The major presenting issue was joblessness and subsequent financial stressors." May 2015 treatment notes reflect reports by the Veteran of anxiety, depression, nightmares, flashbacks, increased startle response and anger issues. Also noted is the Veteran's admission to cocaine use. The provider described the Veteran as oriented to person, place, time, and situation, with logical thought processes and moderately impaired memory. There was no suicidal ideation. The diagnosis provided was anxiety disorder NOS r/o PTSD. In June 2016 the Veteran was taken to the emergency department for suicidal ideation. Records reflect that the Veteran was using cocaine. He was subsequently admitted overnight to the Psychiatry Emergency Room at the Cleveland VAMC for "crisis management." The Veteran received another VA examination in July 2016. The examiner provided a diagnosis of unspecified personality disorder, stating that the Veteran's presentation and documented symptoms are suggestive of a "life-long pattern of interpersonal difficulties and emotional dysregulation." The examiner based this determination on a thorough review of the Veteran's records, including prior treatment records, the August 2010 VA examination, the Veteran's presentation in the examination and the Veteran's responses to the MMPI-2, an objective measure of personality functioning. Furthermore, the examiner noted the Veteran's recent hospital admission and noted cocaine use, and opined that a proper diagnosis of an anxiety or mood disorder cannot be made when substance abuse complicates the picture. The Board finds the examiner's opinion and rationale to be competent, credible, and highly probative of the Veteran's current disorders. Treatment records from August 2016 through December 2016 reflect the Veteran's treatment for substance abuse and addiction. The most probative evidence indicates that the Veteran's adjustment disorder is no longer active and that his symptoms are due to a personality disorder and substance abuse disorder, neither of which may be service-connected. Therefore, the symptoms may not be considered in assigning a rating for the Veteran's service-connected adjustment disorder. 38 C.F.R. § 4.14. Accordingly, a rating in excess of 30 percent is not warranted. In essence, his use of drugs prevents further analysis of diagnostic classification and the personality disorder symptoms have been distinguished from the service connected disability. Furthermore, the examiner established a lifetime issue and the record establishes a long history of substance abuse. Accordingly, a staged rating is not warranted at any time. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an increased rating in excess of 30 percent for the Veteran's service-connected chronic adjustment disorder. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. II. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extra-schedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16 (b). 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). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran's combined disability evaluation is 30 percent. Therefore he is not eligible for a schedular TDIU. An extraschedular TDIU may be considered when the Veteran's service-connected disabilities prevent him from securing and following a gainful occupation. 38 C.F.R. § 4.16(b). However, as noted above, the Veteran's current symptoms are attributable to his personality disorder and substance disorder, which are not service-connected. The ED disorder does not result in occupational impairment. Nothing credible in this record establishes that service connected disability results in an inability to obtain and retain substantially gainful employment. Therefore an extraschedular TDIU is not warranted. ORDER Entitlement to an initial rating in excess of 30 percent for chronic adjustment disorder with mixed anxiety and depression is denied. Entitlement to total disability rating for individual unemployment is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs