Citation Nr: 19126167 Decision Date: 04/08/19 Archive Date: 04/05/19 DOCKET NO. 15-31 001 DATE: April 8, 2019 ORDER Entitlement to an initial 70 percent rating prior to January 15, 2014 and from October 2, 2015 to September 30, 2016 for the service-connected adjustment disorder with depressed and anxious mood is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to an initial 100 percent rating from October 1, 2016 to February 28, 2018 for the service-connected adjustment disorder with depressed and anxious mood is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to an initial rating in excess of 30 percent from January 15, 2014 to October 1, 2015 for the service-connected adjustment disorder with depressed and anxious mood is denied. REMANDED Entitlement to an initial rating in excess 10 percent from June 21, 2011 to February 28, 2018 and in excess of 20 percent from March 1, 2018 the for service-connected left shoulder strain is remanded. Entitlement to an initial rating in excess of 10 percent for the service-connected lumbar strain is remanded. Entitlement to an initial rating in excess 10 percent from June 21, 2011 to February 28, 2018 and in excess of 20 percent from March 1, 2018 for the service-connected cervical strain with degenerative joint disease is remanded. Entitlement to an initial rating in excess 10 percent for the service-connected degenerative joint disease of the right ankle disorder is remanded. FINDINGS OF FACT 1. Prior to January 15, 2014 and from October 2, 2015 to September 30, 2016, the Veteran’s service-connected adjustment disorder with depressed and anxious mood was productive of no more than occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 2. From October 1, 2016 to February 28, 2018, the Veteran’s service-connected adjustment disorder with depressed and anxious mood was productive of total occupational and social impairment. 3. From January 15, 2014 to October 1, 2015, the symptomatology associated with the Veteran’s service-connected adjustment disorder with depressed and anxious mood was not productive of occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. Prior to January 15, 2014 and from October 2, 2015 to September 30, 2016, the criteria for an initial 70 percent rating, but no higher, for the service-connected adjustment disorder with depressed and anxious mood are met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9440. 2. From October 1, 2016 to February 28, 2018, the criteria for an initial 100 percent rating for the service-connected adjustment disorder with depressed and anxious mood are met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9440. 3. From January 15, 2014 to October 1, 2015, the criteria for an initial rating in excess 30 percent for the service-connected adjustment disorder with depressed and anxious mood are not met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, DC 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2010 to June 2011. In a March 2018 rating decision, the Agency of Original Jurisdiction (AOJ) increased the Veteran’s initial rating for adjustment disorder with depressed and anxious mood from 30 percent to 100 percent effective March 1, 2018. Applicable law mandates that, when a veteran seeks an increased rating, it will generally be presumed that the maximum benefit is sought, and it follows that a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35 (1993). As a 100 percent rating is the maximum rating available for adjustment disorder with depressed and anxious mood, the issue as to whether an increased rating is warranted from March 1, 2018 is moot and will not be considered. The only remaining issue on appeal—pertaining to the service-connected adjustment disorder with a depressed and anxious mood—is entitlement to a higher rating prior to March 1, 2018. Entitlement to a higher initial rating for the service-connected adjustment disorder with depressed and anxious 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 psychiatric disorder is rated under the General Rating Formula for mental disorders. Under the General Rating Formula, a rating of 30 percent is warranted for a mental disorder that results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (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). 38 C.F.R. § 4.130, DC 9440. A rating of 50 percent 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. A 100 percent rating requires 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/others; intermittent inability to perform activities of daily living (such as maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 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. Here, the Veteran is currently assigned an initial disability rating of 30 percent prior to March 1, 2018 and, as previously indicated, a 100 percent rating therefrom. As will be discussed more fully below the Board finds that the evidence is at least in equipoise as to whether a higher initial 70 percent rating is warranted for the periods prior to January 15, 2014 and from October 2, 2015 to September 30, 2016 and a higher initial 100 percent rating is warranted for the period from October 1, 2016 to February 28, 2018. From January 15, 2014 to October 1, 2015, however, a higher initial rating in excess of 30 percent is not warranted. In August 2012, the Veteran underwent a VA examination to assess his psychiatric disorder. See August 2012 VA Examination report. The examiner diagnosed the Veteran with adjustment disorder. The Veteran endorsed moderate symptoms consisting of isolation, anhedonia, depressed mood, anxiety, low energy, poor sleep, poor attention and concentration, suicidal ideations, forgetfulness, low appetite, crying spells often, helplessness, hopelessness, and worthless. In light of these symptoms, the examiner indicated that the Veteran had 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. VA treatment records dated prior to January 15, 2014 show symptoms of suicidal thoughts, problems sleeping, severe depression, feelings of worthlessness, and decreased motivation. From January 15, 2014 to October 2, 2015, VA treatment records indicated that the Veteran’s symptomatology improved. Her anxiety and depression were decreased. She denied suicidal/homicidal ideations. She had no manic/psychotic symptoms, complaints of tearfulness, hopelessness, irritability, or hallucinations. As of October 2, 2015, however, her VA treatment records show that her symptomatology increased in severity. She had suicidal ideations/thoughts, irritability, depression, and was isolating more. In January 2016, she underwent another VA examination to assess the severity of her psychiatric disorder. The examiner diagnosed the Veteran with adjustment disorder and documented symptoms of depressed mood, anxiety, and attention/concentration problems. However, the examiner also indicated that the Veteran was moderately impaired in her ability to sustain concentration to task persistence and pace; to respond appropriately to coworkers, supervisors, or the general public; and to respond appropriately to changes in the work setting. The examiner indicated further that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. VA treatment records indicate that in October 2016, the Veteran was hospitalized because of her intent to commit suicide. Apparently, this was considered an interrupted suicide attempt. See January 2017 VA Treatment records. Since that time, the Veteran reportedly left her job due to the severity of her psychiatric symptoms. See March 2018 VA Examination report. She also had worsening symptoms of depression, anxiety sleep disturbance, decreased concentration, decreased interest in pleasurable activities, decreased energy, and feelings of guilt, helplessness, and hopelessness. She also demonstrated symptoms of paranoia, mania, psychosis, and significantly impaired judgment. Based on the foregoing evidence, the Board finds that for the period prior to January 15, 2014 and from October 2, 2015 to September 30, 2016, the Veteran’s psychiatric symptomatology more closely approximated the criteria for a 70 percent rating. In pertinent part, for these periods, the evidence demonstrated symptomatology reflective of 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 thoughts, severe depression, anxiety, difficulties with concentration and attention, irritability, isolation, and impaired ability to respond appropriately to peers/public. The Board acknowledges that the above January 2016 VA examiners’ characterization of the occupational and social impairment associated with the Veteran’s adjustment disorder correlates to a 30 percent rating under VA’s rating schedule. Nonetheless, the Board finds that, for the periods prior to January 15, 2014 and from October 2, 2015 to September 30, 2018, the documented symptoms more closely approximate the criteria for a 70 percent rating. See Vazquez-Claudio, 713 F.3d at 116-17; see also Mauerhan, 16 Vet. App. at 442-43. For these periods, a higher initial 100 percent rating is not warranted as the severity of the documented symptoms do not equate to total occupational and social impairment (i.e., a 100 percent rating). For the period from January 15, 2014 to October 1, 2015, the Veteran did not demonstrate symptomatology reflective of the criteria for the next higher 50 percent rating. In pertinent part, for this period, the Veteran’s symptoms of depression and anxiety significantly improved and she no longer had suicidal ideations. As such, for this period, the evidence does not show that the Veteran suffered from symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to a higher 50 percent disability rating. Mauerhan, 16 Vet. App. at 443. Accordingly, from January 15, 2014 to October 1, 2015, the increased rating claim for adjustment disorder with depressed and anxious mood must be denied. For the period from October 1, 2016 to February 28, 2018, however, the evidence is at least in equipoise as to whether the Veteran’s adjustment disorder with depressed and anxious mood meets the criteria for an initial 100 percent rating. Significantly, the record shows that, during this period, the Veteran became hospitalized for suicidality and since that time has not been employed due to her psychiatric symptoms. The record also shows that the Veteran experienced episodes of psychosis and paranoia and was socially isolated due to difficulty relating interpersonally with others. The Board finds that such symptoms are more closely approximated by total occupational and social impairment (i.e., 100 percent rating). See Vazquez-Claudio, 713 F.3d at 116-17. As such, an initial 100 percent rating is warranted for the period from October 1, 2016 to February 28, 2018. REASONS FOR REMAND Entitlement to higher initial ratings for service-connected left shoulder, low back, neck, and right ankle disorders In March 2018, the Veteran was afforded VA examinations to assess his left shoulder, low back, neck, and right ankle disorders. The same VA examiner evaluated the Veteran for all of these disorders. With regard to each disorder, the examiner indicated that she was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups and/or after repetitive use over time. She indicated further that there was no conceptual or empiric basis for making such a determination without directly observing function under these conditions. She also stated that there was no objective evidence in medical literature to apply such circumstances to predict limitations. In spite of the examinations provided above, the Board finds the VA examinations insufficient for rating purposes because they do not provide the required information regarding functional limitations caused by flare-ups and/or after repeated use over time. Although the VA examination was not conducted during a flare-up and/or after repeated use over time, the holding of the United States Court of Appeals for Veterans’ Claims (Court) in Sharp v. Shulkin, 29 Vet. App. 26 (2017) provides that VA examiners should elicit information from the claimant regarding the condition of the relevant joint during such circumstances. Id. at 34. The VA examiner must then estimate the Veteran’s “functional loss…based on all the evidence of record, including the Veteran’s lay information, or explain why he or she could not do so.” Id. at 33. In this case, however, the VA examiner did not attempt to elicit relevant information as to the Veteran’s limitations during flares and/or after repeated use over time and the examiner did not offer an opinion estimating the extent of the Veteran’s functional impairment during these circumstances. Instead, the VA examiner stated that it would not be possible to assess whether limitations were present without directly witnessing function under these conditions. Accordingly, remand is warranted for a new VA examination consistent with the directives herein. The matters are REMANDED for the following actions: 1. With the Veteran’s assistance, obtain any outstanding records of pertinent medical treatment from VA or private health care providers, to include the Veteran’s VA treatment records dated after March 2018. All reasonable attempts to obtain such records should be made and documented. 2. Following the record development above, obtain a VA examination from an appropriate examiner to evaluate the Veteran’s left shoulder, low back, neck, and right ankle disorders. 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 should be reported in detail. The examiner is asked to describe fully the current severity of the Veteran’s left shoulder, low back, neck, and right ankle disorders including all objective manifestations. In addition, with regard to each disability, the examiner should: a) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and lack of coordination present. b) The examiner should state whether the examination is taking place during a flare-up or after repeated use over time. If not, the examiner should ask the Veteran to describe the impairment associated with flare-up episodes or after repetitive use over time, to include: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or the extent of functional limitations. 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 or after repeated use over time. If rendering this opinion is not possible, the clinician must provide an adequate explanation as to why. c) Range of motion testing 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. d) The examiner should also comment on the functional impairment caused by the Veteran’s service connected left shoulder, low back, neck, and right ankle disorders. 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. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel