Citation Nr: 20022331 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 14-13 333 DATE: March 31, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to February 29, 2012 for adjustment disorder with mixed anxiety and depressive disorder associated with left ear hearing loss (now characterized as adjustment disorder with depressive disorder, attention deficit disorder and residuals of traumatic brain injury (TBI) associated with left ear hearing loss) is denied. Entitlement to a disability rating of 50 percent from February 29, 2012 to August 28, 2013 for adjustment disorder with mixed anxiety and depressive mood is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to February 29, 2012, the Veteran’s psychiatric symptoms were well controlled by medication. 2. From February 29, 2012 to August 28, 2013, the Veteran’s psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity. 3. Prior to August 29, 2013, the Veteran’s service-connected disabilities did not preclude the Veteran from gainful employment. CONCLUSIONS OF LAW 1. Prior to February 29, 2012, the criteria for a disability evaluation for adjustment disorder in excess of 10 percent have not been met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.102, 4.1, 42, 4.3, 4.7, 4.10, 4.21, 4.130 Diagnostic Code 9440. 2. From February 29, 2012 to August 28, 2013, the criteria for a 50 percent disability evaluation for adjustment disorder have been met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.102, 4.1, 42, 4.3, 4.7, 4.10, 4.21, 4.130 Diagnostic Code 9440. 3. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to March 1983. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing before a Veterans Law Judge in May 2015. A transcript of that hearing is of record. The Veterans Law Judge who conducted that hearing is no longer available to decide the appeal. In April 2018 the Board notified the Veteran of this fact and provided him the opportunity to testify at another hearing but he did not respond. The Board notes that this matter was previously characterized as entitlement to an earlier effective date for a rating increase. However, as discussed below the Board deemed to recharacterized the matter as an initial higher rating claim for his adjustment disorder. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Board finds the issue of entitlement to a TDIU was raised by the Veteran; therefore, the issue is added to the issues on appeal as the Board has jurisdiction over that issue as well. 1. Entitlement to a Higher Rating for Adjustment Disorder prior to August 29, 2013 The Veteran was granted service connection for adjustment disorder with mixed anxiety and depressed mood in a March 2012 rating decision, with a 10 percent rating, effective April 4, 2011. Within a year the Veteran submitted new evidence related to his adjustment disorder. In an August 29, 2012 rating decision, the Veteran’s disability rating for his adjustment disorder was increased to 30 percent effective August 6, 2012. On October 2, 2012, the Veteran further requested his disability rating be reviewed and stated the effective date for his 30 percent disability rating should have been March 2011. On October 12, 2012, the AOJ denied the Veteran’s earlier effective date claim. In November 2012, the Veteran submitted a notice of disagreement (NOD) as to the effective date of the rate increase and the rating of his adjustment disorder. Following additional development, the AOJ increased the Veteran’s service-connected adjustment disorder rating to 100 percent in a December 2013 rating decision, with the increase effective of August 29, 2013. The Veteran contends that he is entitled to an earlier effective date for the increase to 30 percent. Since the Veteran’s original grant of service connection was not final, and the Veteran’s NOD for an increased rating claim was submitted within one year, the claim before the Board is entitlement to an initial disability rating in excess of 10 percent from April 4, 2011 to August 5, 2012 and in excess of 30 percent from August 5, 2012 to August 29, 2013 for service connected adjustment disorder. While this may appear as merely semantics, it is important to highlight this distinction as different legal criteria govern claims for earlier effective dates versus increased rating claims. The Board notes that the Veteran has a 100 percent disability rating for his psychiatric disorder from August 29, 2013, which is the highest allowable schedular rating for a psychiatric disorder. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. In May 2011, VA treatment records indicates that with medication, the Veteran’s mood and sleep improved. In June 2011, VA treatment notes indicates that the Veteran continued to benefit from medication for depression, anxiety, and insomnia. The Veteran noted positive feedback from his wife and daughter who saw improvement, but noted that his depression and anxiety was chronic that it had been worsening as his hearing loss worsened. In February 2012, the Veteran reported his medication was not helping. The Veteran was provided increased medication. In May 2012, the Veteran reported that his medication only had moderate effect. In August 2012, the Veteran reported his medication was not working and his sleep became worse. In October 2012, the Veteran’s VA provider speculated that sleep apnea was the likely cause of his sleep issue. In January 2013, the Veteran and his family reported his symptoms had increased. The Veteran had short term memory issues, was easily distracted, the Veteran was overwhelmed by daily tasks, avoided issues and conflicts, liable mood, poor focus and concertation, and low energy and fatigue. The Veteran and his wife provide the example of running red lights because he was not paying attention. In March 2013, the Veteran reported his mood might be somewhat better. The Veteran’s wife was concerned about problems with short term memory, impaired attention and focus and freezing up in crisis issues. In April 2013, the Veteran’s reported that he had chronically impaired occupational and social functioning. They noted the Veteran held but always lost well-paying jobs. The Veteran’s family felt that his short-term memory issue had worsened along with poor judgment. Throughout the appellate period, the Veteran’s VA treatment records demonstrate consistent mental status examinations other than his mood and affect. The Veteran was appropriately groomed; normal activity; cooperative attitude; fluent, coherent, no pressured or latency speech; denied any hallucinations; spontaneous, linear, logical, and goal directed thought flow; and no delusions. The Veteran denied suicidal or homicidal ideations. The Veteran was alert; oriented to person, place, and time; memory was intact; attention, judgment, and insight were good; and intelligence was average. From May 2011 to May 2012 the Veteran’s mood was euthymic. and affect was euthymic, appropriate, congruent. In May 2012, the Veteran’s mood and affect was dysthymic. In January 2013, the Veteran’s mood and affect was irritable and dysthymic. In June 2011, the Veteran underwent a VA psychiatric examination. The examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood. The examiner found the Veteran had anxiety and depressive symptoms. During the examination the Veteran reported that he was married for 24 years with two children. The Veteran described his family relationship was very good. The Veteran stated he had friends and socialized. The Veteran reported he enjoyed going out to eat, going to movies, and yard work and landscaping. Upon mental status examination the examiner found the Veteran was neatly groomed; had unremarkable psychomotor activity; spontaneous and clear speech; cooperative and friendly attitude toward the examiner; normal affect; good mood; intact attention; oriented to person, place, and time; unremarked thought process and thought content; no delusions; understood outcome of behavior; and had above average intelligence with good insight. The examiner found the Veteran had sleep impairment. The Veteran reported prior to his medication he had insomnia. The Veteran did not have hallucinations; inappropriate behavior; observe or ritualistic behavior; panic attacks; homicidal or suicidal thoughts; had good impulse control; no episodes of violence. The Veteran had normal remote, recent, and immediate memory. The examiner found the Veteran’s symptoms were controlled by continuous medication. In August 2012, the Veteran underwent another VA examination. The examiner diagnosed the Veteran with adjustment disorder with depressed mood. The examiner found the Veteran had symptoms of depressed mood, and chronic sleep impairment. The Veteran lived with his wife for 25 years with their 6 children. The Veteran was busy at home with little free time. Most of his free time was spent with his family, which he enjoyed. The Veteran was working toward his MBA. The Veteran had not been working since he was terminated in August 2010, when he was terminated. The Veteran reported his chronic sleep impairment was affecting his wife as well as his kids. The examiner found there was occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during significant periods of stress, or his symptoms were controlled by medication. The examiner found the Veteran’s adjustment disorder did not render him unable to secure or maintain substantial gainful employment. The Veteran submitted a report from his employer from August 2010. The reported indicated the Veteran was fired due to poor judgement. The Veteran in the May 2015 Board hearing. The Veteran testified that in March 2011 he lost his job. The Veteran stated that he began making bad decisions. The Veteran stated he noticed he started having poor judgement. The Veteran stated he went back to school for his MBA after he was fired. The Veteran stated he did not finish. The Veteran’s wife testified in the May 2015 Board hearing. The Veteran’s wife noticed his judgment had declined. She stated that the Veteran was in several car accidents. The Veteran’s wife stated that the Veteran sought psychiatric treatment due to losing his job in August 2010. The Board finds that prior to February 29, 2012, a disability rating in excess of 10 percent is not warranted. The Veteran’s symptoms of anxiety, depressed mood, and sleep impairment were controlled by medication. Notably the June 2011 VA examiner found the Veteran’s symptoms were controlled by medication. Further, the Veteran reported during the June 2011 VA examination that prior to taking his medication he had sleep impairment, implying that his medication controlled his sleep impairment. The Board is cognizant of the Veteran’s and his wife’s testimony that his judgment had been impaired. Further, that the Veteran was fired reportedly due to poor judgement in August 2010. However, the Veteran’s VA treatment records from April 2011 to February 2012 and the June 2011 VA examination mental status reports all indicate that the Veteran’s judgment was intact. While the Veteran did experience symptoms contemplated by a 30 percent rating such as depressive symptoms, anxiety, and sleep impairment, the evidence overall does not demonstrate the level of impairment associated with a 30 percent rating, because these symptoms were controlled by medication. Therefore, from April 4, 2011 to February 29, 2012, the Veteran’s symptoms were productive of occupational and social impairment that were consistent with a 10 percent rating. The Board finds from February 29, 2012 to August 28, 2013 the Veteran’s symptoms more closely approximate a 50 percent disability rating. VA treatment records note that beginning in February 2012 the Veteran’s medication was no longer effective in controlling his symptoms. VA treatment records note declining memory function, poor judgement, disturbances in mood and motivation, and impaired occupational and social functioning. While the Veteran had difficulty adapting to a stressful situation as contemplated by a 70 percent rating the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. Notably, the August 2012 examiner found the Veteran’s occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during significant periods of stress. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. As such, the Board finds that from February 29, 2012 to August 28, 2013 a 50 percent disability is warranted. In conclusion, prior to February 29, 2012 a disability rating in excess of 10 percent for service-connected adjustment disorder is denied. From February 29, 2012 to August 29, 2013 a 50 percent disability for adjustment disorder is granted. 2. Entitlement to a TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In making this determination, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met. Id. But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16 (b), if it is shown he is indeed unemployable owing to his service-connected disabilities. In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration. See Barringer v. Peake, 22 Vet. App. 242 (2008). This does not, however, preclude the Board from determining whether this special consideration is warranted. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). The record shows that the Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a). The Veteran is service connected for adjustment disorder (10 percent effective April 4, 2011 and 50 percent from February 29, 2012), sleep apnea (50 percent effective November 14, 2012), tinnitus (10 percent effective April 17, 2007), hearing loss (noncompensable, effective August 18, 1995) and tinea pedis and onychomycosis of the feet (noncompensable effective August 18, 2018). The Veteran meets the schedular rating from February 29, 2012. The Board notes that the Veteran’s adjustment disorder is secondary to the Veteran’s left ear hearing loss as was his tinnitus, and thus stems from the same etiology. From August 29, 2013 the Veteran is rated 100 percent with a special monthly compensation and, therefore, is precluded from a TDIU from August 29, 2013. Prior to February 29, 2012, the Veteran did not meet the schedular requirement for TDIU. The evidence in the record indicates that the Veteran last worked in August 2010, when he was fired for poor judgment, specifically, it appears the Veteran was providing presentation on his company’s property to other businesses on the weekends. The record indicates that the Veteran has a college degree. The Veteran was an MBA student from August 2010 until December 2013. The Veteran’s vocational records indicate that the Veteran was a 3/4 student during the spring 2011 semester and 2011 to 2012 school year, a full-time student in in the 2012 to 2013 school year. Vocational records indicate that the Veteran was on the honor roll. In June 2012, the Veteran reported that he had applied to three jobs in March, May and June 2012. The jobs the Veteran applied for were safety manager and occupational safety and health, at manufacturing and food processing businesses. In June 2012, the Veteran underwent a vocational assessment in conjunction with his Vocational, Rehabilitation, and Education benefits. The assessment found that the Veteran no longer could work in the manufacturing sector due to his hearing issue. The Veteran’s reported plan was to finish his MBA and work in hospital administration. In August 2012, a VA psychiatric examiner found the Veteran’s adjustment disorder did not render him unable to maintain substantial gainful employment. In March 2014, the Veteran’s spouse submitted a statement requesting to withdraw from vocational benefits due to the Veteran’s inability to manage the course work. In this case, the preponderance of the evidence is against the award of a TDIU. The Veteran was a student in an MBA program in August 2010 through at least August 2013. Ultimately, despite the functional limitations of his disabilities, the Veteran was either a full-time or nearly full-time student up until January 2014. Further, the Veteran was on the honor roll in his graduate level course work, which indicates that his disabilities did not impair his ability to work successfully in a rigorous graduate program, which is analogous to a work like setting. Although the Veteran ultimately withdrew from his graduate program, this occurred after the effective date of his 100 percent disability rating and special monthly compensation effective date. The Board notes, the Veteran was fired in August 2010 for poor judgment, however it appears that Veteran’s poor judgment was due to his use of company property to moonlight. The evidence of moonlighting at this time is evidence that the Veteran was employable, noting that other businesses were willing to employ him, even while he was employed. The Board is cognizant that the Veteran applied to three other jobs in March, May, and June of 2012 and appears was not hired. These jobs were all in manufacturing, which the Veteran’s vocational assessment indicated the Veteran was a profession he would no longer work in due to his hearing impairment. Specifically, the Veteran indicated he would work in hospital administration, in conjunction with his MBA. There is no evidence the Veteran attempted to obtain a job outside of manufacturing. Inability to be employed in a specific industry does not render a person unemployable, especially when the person pursued an education to broaden skills required to work in other industry, as the Veteran did. Consequently, at any time during the entire appellate period neither a schedular TDIU rating nor referral for consideration of an extraschedular TDIU is warranted. 38 C.F.R. § 4.16. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable. Therefore, the claim is denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.