Citation Nr: 20009705 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 19-13 659 DATE: February 6, 2020 ORDER Entitlement to a rating of 50 percent, but no higher, prior to January 25, 2019 for adjustment disorder is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating in excess of 50 percent from January 25, 2019 for adjustment disorder is denied. REMANDED Entitlement to service connection for iliopsoas tendonitis claimed as a hip condition, to include as secondary to service-connected bilateral upper and lower extremity weakness associated with muscular dystrophy is remanded. Entitlement to a rating in excess of 10 percent for degenerative arthritis lumbar spine is remanded. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s adjustment disorder more nearly manifested occupational and social impairment with reduced reliability and productivity prior to January 25, 2019. 2. For the entire appeal period, the Veteran’s adjustment disorder was not more nearly manifested with occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no higher, for adjustment disorder prior to January 25, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. 2. The criteria for a disability rating in excess of 50 percent for adjustment disorder have not been met at any point during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from March 2010 to March 2017. This matter comes before the Board from a July 2017 rating decision, a November 2017 rating decision, and a February 2019 rating decision. On the Veteran’s April 2019 Form 9, the Veteran has asserted that he is unemployable due to his service-connected disabilities. The Court of Appeals for Veterans Claims (Court) has held that a claim of entitlement to TDIU is part and parcel of an underlying increased rating claim, when raised during the open appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board has also included entitlement to TDIU as an issue on appeal at this time. 1. Entitlement to a rating in excess of 30 percent prior to January 25, 2019 for adjustment disorder The Veteran contends that his service-connected adjustment disorder has been more severe than the assigned rating reflects. See November 2019 Informal Hearing Presentation. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s adjustment disorder is rated 30 percent, under Diagnostic Code 9499, from March 29, 2017 to January 25, 2019 and 50 percent therefrom. Mental disorders are rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130; Diagnostic Code 9201-9440. In pertinent part, it provides the following: Under the General Rating Formula, a 30 percent disability 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). A 50 percent rating is warranted where the disorder is manifested by 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. Id. A 70 percent rating requires 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 interfering 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/maintain effective relationships. Id. A 100 percent rating is warranted where 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 symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). However, “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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. at 116-17. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria; rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126 (a). Based on a review of the evidence, the Board finds that the evidence supports an award of 50 percent, but no higher, for the Veteran’s adjustment disorder for the period from March 19, 2017 to January 25, 2019. In making this finding, the Board finds particularly persuasive the VA examinations evaluating the Veteran’s psychiatric symptoms such as depressed mood, anxiety, chronic sleep impairment with related fatigue, disturbances of motivation and mood. At the July 2017 VA examination, the Beck depression test was administered, the Veteran described difficulty concentrating at work because he ruminates on perceived failures, moderate feelings of failing, decreased pleasure in activities, sleep disturbances, and fatigue. The Veteran’s score indicated mild to moderate depression. Additionally, at this examination, the Veteran endorsed some obsessive habits, such as walking the perimeter of his property daily, and irritability and being easily angered. The examiner noted that the Veteran’s affect was anxious and at times dysphoric. In the Veteran’s January 2018 notice of disagreement, he endorsed severe depression symptoms culminating in him avoiding social situations and finding it difficult to leave his home. The Veteran expressed feelings as though he will never be happy again. Additionally, the Veteran states that his lack of motivation and concentration extends past his work life and into his personal life where he is unable to finish projects because he loses the motivation to continue. The Board finds that the evidence supports an award of a 50 percent rating for the service-connected adjustment disorder for the period from March 19, 2017 to January 25, 2019. The Board bases this finding on the Veteran’s depression, social isolation, reduced motivation, impaired concentration at work, and chronic sleep impairment with associated fatigue. 2. Entitlement to a rating in excess of 50 percent since January 25, 2019 for adjustment disorder The Veteran contends that his service-connected adjustment disorder has been more severe than that reflected by the assigned 50 percent rating for the period from January 25, 2019. See February 2018 Notice of Disagreement; April 2019 Statement; Informal Hearing Presentations. At no point during the appeal period, from March 19, 2017 to the present, did the Veteran’s adjustment disorder manifest with symptoms of such severity to warrant a rating in excess of 50 percent. A rating of 70 percent or higher at any point during the period on appeal is denied. In making this decision, the Board finds particularly persuasive the VA examinations of record. The examinations consistently report that the Veteran endures symptoms of depression and anxiety, social isolation, difficulty in concentration at work, reduced interest in hobbies or other interests, irritability, and chronic sleep impairment. At the January 2019 VA examination, the Veteran reported essentially the same symptomatology as the previous examination, with the addition of low energy and appetite. The evidence does not demonstrate that the Veteran experiences symptoms analogous with the 70 percent rating at any point during the appeal period. Both the July 2017 VA examiner and January 2019 VA examiner noted that the Veteran’s appearance was clean. The January 2019 examiner did note that the Veteran was a little disheveled, but there is no indication that the Veteran is unable to maintain his appearance or hygiene. The Veteran has never endorsed audiological or visual hallucinations, or psychosis. Aside from the July 2017 report that he walks his property daily, there is no evidence that he has ritualistic behaviors or counting and checking behaviors which interfere with his daily activities. The Veteran denied panic attacks and chronic anxiety throughout the appeal period and while the Veteran does endorse anxiety, there is nothing to indicate that it is near continuous. The Veteran’s thought process has always been noted to be organized and goal directed with no evidence of thought disorder, and his speech fluent and normal. While the Veteran states that he is easily angered, there is nothing in the file to indicate he becomes violent to himself or others to indicate impaired impulse control. Regarding social and occupational impairment, the July 2017 VA examiner noted that the Veteran demonstrated mild (italics added for emphasis) impairment in social and occupational functioning. Regarding social impairment, the Veteran reported having a good marriage albeit there was current (then) stress that was a result of finances and childrearing. While the Veteran indicated that he avoided social situations during the January 2019 examination, that same examination report reflects that he was actively enrolled in college and, according to the examiner, engaged in his academics. The July 2017 VA examiner noted that the Veteran had good relationships with his sister and mother, but not his brother. His social life was noted to have revolved around his family. Concerning occupational impairment, the Veteran was noted to have been employed part-time (25-30 hours a week) in carpentry. He denied having problems with job performance, getting along with others or issues with authority. Based on a review of the foregoing evidence, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating in excess of 50 percent at any time during the appeal period. In reaching this conclusion the Board considered the doctrine of reasonable doubt, however as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for iliopsoas tendonitis, claimed as a hip condition, is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a hip condition. The November 2017 VA examiner opined that the Veteran’s hip condition was less likely related to his military service because there was limited evidence in the claims file reguarding a hip injury while in-service. The examiner did not address the notations of decreased hip range of motion and weakness in the Veteran’s service treatment records. Nor did the examiner address the Veteran’s lay statements that he began experiencing hip pain and noted hip weakness while he was in-service and that these symptoms have proceeded since that time. Additionally, the examiner should address the Veteran’s contentions that his hip pain and weakness is a result of his training to be a rescue diver. The Veteran was diagnosed with muscle atrophy during this training and service connection has been established for muscule dystromphy of the rigth upper extremity weakness associated with muscular dystrophy (10 percent disabling); left upper extremity weakness associated with muscular dystrophy (10 percent disablign); left lower extremity weakness associated with muscular dystropy (10 percent disabling); and, right lower extremity weakness associaetd with muscular dystrophy and sciatic nerve radiculopahty associated with degenerative arthritis (10 percent disabling). The Veteran contends that as a result of his service-connected muscular dystrophy, notably of the upper body, that he compensated with his lower body, to include his hips. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis lumbar spine is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s lumbar spine disability, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements. 3. Entitlement to a TDIU The Veteran contends that he is unemployable due to his service-connected disabilities. The Board finds that the Veteran’s claim for TDIU is inextricably intertwined with his pending claims for service connection, and claim for an increased rating for his service-connected back disability. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Additionally, the Veteran has not submitted the TDIU form and the record is incomplete as to his education and work history. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral hip condition, diagnosed as bilateral iliopsoas tendonitis. The examiner is asked to answer the following questions: a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s bilateral hip condition, diagnosed as bilateral iliopsoas tendonitis had its onset during or is otherwise etiologically related to his period of military service? Why or why not? In providing the requested opinion, the examiner is requested to comment on the notations of hip pain and weakness in the Veteran’s service treatment records and his contentions that he overused his hips swimming to compensate for his reduced upper body strength which was caused by his muscle atrophy. b) Is it at least as likely as not (50 percent or greater) that the Veteran’s service-connected muscular dystrophy weakness of the bilateral upper and lower extremities caused his bilateral hip disorder, diagnosed as bilateral iliopsoas tendonitis? Why or why not? c) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s muscular dystrophy weakness of the bilateral upper and lower extremities aggravated his bilateral hip disorder, diagnosed as bilateral iliopsoas tendonitis? Why or why not? 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected low back disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. 3. Ask the Veteran to complete a TDIU claim form. CAROLE R. KAMMEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.