Citation Nr: 20026031 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 16-19 775A DATE: April 15, 2020 ORDER Entitlement to a rating in excess of 30 percent for adjustment disorder with anxiety prior to November 14, 2018 is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extra-schedular basis, is remanded. FINDING OF FACT Prior to November 14, 2018, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW Prior to November 14, 2018, the criteria are not met for a disability rating greater than 30 percent for the adjustment disorder with anxiety. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1979 to December 1987. This case was previously before the Board in December 2018, at which time the Board determined, in pertinent part, that: 1) prior to November 14, 2018 (so for the period from July 29, 2011 [the date entitlement arose] to November 13, 2018), the Veteran was not entitled to an initial rating higher than 30 percent for her adjustment disorder with anxiety and 2) a TDIU was not warranted either prior to or since November 14, 2018. The Veteran timely appealed the Board’s December 2018 decision to the higher United States Court of Appeals for Veterans Claims (Veteran’s Court/CAVC). In November 2019 the parties filed a Joint Motion for Partial Remand (JMPR), which the Court granted in an Order that same month, partially vacating the Board’s decision and remanding the claims to the Board for further development and re-adjudication in compliance with directives specified. Of note, the Veteran did not appeal the Board’s December 2018 decisions that determined: 1) entitlement to an effective date prior to July 29, 2011 for the grant of service connection for her adjustment disorder with anxiety was not warranted; and 2) that a rating in excess of 50 percent for her adjustment disorder with anxiety from November 14, 2018 onwards was not warranted. Thus, this appeal now only concerns the rating for the adjustment disorder with anxiety prior to November 14, 2018 and whether a TDIU is warranted – including, as will be discussed, on an extra-schedular basis. Increased Rating Entitlement to an initial rating in excess of 30 percent for adjustment disorder with anxiety prior to November 14, 2018 The Veteran contends that, even prior to November 14, 2018, the symptoms of her adjustment disorder with anxiety were more severe than contemplated by the 30 percent rating in effect for this initial period. 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). To this end, the Board must decide whether the Veteran’s symptoms, for this initial period at issue prior to November 14, 2018, caused the level of occupational and social impairment required for a disability rating of 50 percent or higher. But, as will be discussed, the Board concludes that her symptoms did not cause the required level of impairment for a 50 percent or greater rating during this initial period. Instead, her symptoms more closely approximated those commensurate with a 30 percent rating and resulted in a level of impairment that most closely approximated this lesser rating. 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. 38 C.F.R. § 4.130, DC 9440 VA treatment records, the reports of the March 2013 and October 2014 VA examinations, the February 2014 Social Security Administration (SSA) examination, and the Veteran’s lay statements show that her adjustment disorder with anxiety was manifested by symptoms associated with a 30 percent rating, including generally functioning satisfactorily, depressed mood, anxiety, and panic attacks weekly or less often. Her disorder also manifested in some symptoms associated with a higher 50 percent rating – including intermittent flattened affect and difficulty understanding complex commands. She also had symptoms that are not listed with a specific rating, such as irritability, feeling anxious, occasional low energy, poor concentration, tendency to isolate at home, and one instance where her affect was noted to be restricted, depressed, blunted, and flat. The Board will also address a finding in her SSA file that she had difficulty adapting to stressful circumstances, which is contemplated by an even higher 70 percent rating. In March 2013, the Veteran underwent a VA psychological examination. At this examination, the Veteran reported that she was anxious, especially when driving or in larger groups. She reported that her sleep was good. The examiner found that the Veteran did not have a diagnosis of posttraumatic stress disorder (PTSD) but rather, diagnosed an adjustment disorder with anxiety. The examiner further noted that the Veteran’s level of impairment was occupational and social impairment with reduced reliability and productivity, however the examiner clarified that this applied to the period at the end of the Veteran’s civilian employment, so 2009, and not presently. The examiner further observed anxiety and suspiciousness, with a broad affect, and no perceptual disturbances. The Veteran denied suicidal ideation at present and in the past. Records obtained from the SSA show that the Veteran was examined by a psychologist in February 2014 as a part of her social security disability claim. This examiner observed that the Veteran endorsed “symptoms of PTSD, such as avoidance of other people and anxiety around others to have begun in 2012.” The Veteran further reported that “she no longer socializes with people as she is avoidant of others due to distrust.” The Veteran also stated that she was able to complete household tasks however it took longer than it used to due to physical pain from a non-service-connected disability. The Veteran reported that she was often late to appointments, in contrast to having a punctual nature in the past, and that she attempted to shop but difficulty lifting (again, from a non-service- connected disability) made it hard to complete these tasks. Of note, the Veteran also reported that she no longer went out to socialize or take trips because she cannot travel by herself as she is too anxious. She endorsed a history of panic attacks, and stated they were occurring every other day, which precluded her from many activities. The February 2014 SSA examiner performed a mental status examination and determined the Veteran had a normal rate and flow of speech, had no audio or visual hallucinations, immediate and delayed recall were good, and her attention and concentration were fair. In contrast to her March 2013 VA examination, the Veteran reported suicidal ideation in the past, not at present, but did not specify when. In assessing the Veteran’s credibility, the examiner stated the Veteran’s statements and portrayal of symptoms was 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 non-service connected physical disabilities. The examiner further noted, that “there were a few inconsistencies in her statements, including her inability to determine if her depressed mood was impacted by use of antidepressant medication, 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 ultimately opined that the Veteran’s depressed mood and PTSD will have a moderate to severe impact on her work life. An additional February 2014 record associated with the claims file through the Veteran’s SSA file shows that on a Medical Source Statement of Ability To Do Work-Related Activities (Mental) noted that the Veteran’s psychological impairment does not affect her ability to understand, remember, and carry out simple instructions. A close review of this record shows that in response to being asked to describe the Veteran’s restrictions, the doctor marked “none” which indicates there was no observed restriction to understanding, remembering, and carrying out simple instructions. The doctor did note a mild restriction in ability to make judgments on simple work-related decisions. Additionally, the doctor noted that the Veteran had “moderate” restrictions concerning understanding, remembering, and carrying out complex instructions, and in her ability to make judgments on complex work-related decisions. The doctor further stated that the Veteran has been prescribed medication for depressed mood and that she likely will have moderate impact on focus and motivation in the workplace from these factors. The doctor also noted that the Veteran would have “mild” restriction to interacting appropriately with supervisors, “moderate” restriction to interacting appropriately with the public and co-workers, and “marked” restriction to responding appropriately to usual work situations and to changes in a routine work setting. However, after this section and in contrast to his statement above concerning medication impacting the Veteran’s workplace focus and motivation, the doctor then stated, “She is not receiving medication for depressed mod or anxiety at this time.”   The Board expressly acknowledges, pursuant to the November 2019 JMPR, that the difficulty adapting to stressful circumstances is consistent with a 70 percent rating. However, the Board does not find that the Medical Source Statement to be persuasive in this instance to warrant a rating higher than 30 percent. An April 2014 VA treatment record, so two months after the Medical Source Statement was completed, shows the Veteran presented for care and stated that she “had a stressful week last week due to her older brother coming to her house unannounced and wanting her to help him find a new job.” The evaluating doctor then noted that the Veteran “stated that she felt anxious for most of the week due to her weekly schedule being altered.” The Board finds that her feelings of anxiousness are more akin to feelings of anxiety, which are contemplated by her existing 30 percent rating, and this does not evidence difficulty in adapting to stressful circumstances. The Board additionally finds the VA treatment records to be more persuasive than the February 2014 Medical Source Statement because statements recorded in VA treatment records were made in furtherance of medical treatment, in contrast to statements made to SSA for purposes of obtaining disability benefits. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. Moreover, in the “Disability Determination Explanation” included with the January 2015 SSA decision, it is noted that the Veteran’s statements concerning her symptoms were only “partially credible.” The explanation was that “the medically determinable impairments could reasonably be expected to produce some of the alleged symptoms, but that the claimant’s statements concerning the intensity, persistence and limiting effects appear to be more restrictive that [sic] subjective evidence therefore, symptoms are not entirely credible.” This is a blanket statement concerning all claimed disabilities for SSA, however, her claimed disabilities include her adjustment disorder with anxiety. A May 2014 VA treatment record shows that the Veteran presented to VA Mental Health to re-establish care. The doctor noted that the Veteran had a “bright affect today” and “reported no sleep disturbances.” The Veteran reported panic like episodes usually occurring twice per week and irritability, occasional low energy, poor concentration, and a tendency to isolate at times. However, the Veteran also reported that she “continues to enjoy reading, shopping, socializing w/friends.” The examiner also noted that the Veteran reported that her leisure activities were “tv, reading, socializing with friends, bingo.” The examiner observed that the Veteran had normal activity, an attentive, cooperative, and interested attitude, her speech was fluent, relevant and coherent, she had an anxious mood, her affect was appropriate, normal perception, and normal thought flow and content. The Veteran denied any suicidal or homicidal ideation. A June 2014 VA treatment record shows that the Veteran’s observed affect was restricted, depressed, blunt, and flat. This treatment record, specifically pointed to in the November 2019 JMPR by the Court, also reflects that the Veteran presented with depressed mood but normal perception, good judgment, fair insight, good reliability, and that she denied suicidal or homicidal ideations. The doctor also noted that both the Veteran’s recent and remote memory were good. The doctor further noted that while the Veteran’s speech was hesitant and emotional, she was fluent and cooperative. There were no reported panic attacks, impaired speech, impaired memory, impaired judgment, or impaired abstract thinking. Further, the Veteran stated that she presented for care because she had been referred for assessment of depression, and it was noted that “Over the years she has obsessed about this [the circumstances of her separation from service] and experienced depressive bouts.” The Board does acknowledge that “flattened affect” is consistent with a higher 50 percent disability rating, however, this June 2014 treatment record, as specifically pointed to by the Court, does not support a full disability picture warranting a higher disability rating. The stated and observed symptoms are more consistent with a 30 percent rating, including depressed mood and normal conversation. Further, other symptoms supporting a higher 50 percent rating were not present and, in fact, the opposite was indicated by the doctor, including that the Veteran had normal speech, no reported panic attacks, no memory impairment, and no impaired judgment. The Veteran again underwent a VA psychiatric examination in October 2014. At this examination, the Veteran’s primary complaints were 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 October 2014 VA examiner characterized the Veteran’s level of impairment as occupational and social impairment due to mild or transient symptoms with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner noted that the Veteran was currently prescribed psychotropic medications and meets with a VA psychiatrist, but did not participate in psychotherapy. Symptoms noted were depressed mood, anxiety, suspiciousness, and weekly or less frequent panic attacks. The examiner observed that the Veteran’s affect was stable and euthymic, speech clear and coherent, and the Veteran again denied any suicidal or homicidal ideations. The Veteran reported that she could independently complete activities of daily living, and of note, drove herself to the appointment. The Veteran also denied audio or visual hallucinations. A December 2016 VA psychotherapy record notes that the Veteran’s affect was “constricted; congruent to thought content.” The doctor also noted that the Veteran’s speech was circumstantial, however this was noted as a result of the doctor asking the Veteran to clarify discrepancies in her reported symptomology. The doctor also noted the Veteran’s multiple complaints regarding the VA disability benefits process, the Veteran’s observed attitude was “mildly confrontative” and that she had an irritable mood. The doctor further observed that the Veteran’s speech was within normal limits, no perception abnormality found, thought flow was “circumstantial at times; otherwise logical, linear, and goal-oriented” and thought content was normal. The Veteran’s judgment was grossly intact and insight was fair. She denied suicidal or homicidal ideations. Finally, the Board would like to note that multiple times in VA treatment records the Veteran was observed as having an appropriate affect, including in May 2014, July 2014, October 2014, January 2015, June 2015, September 2015, and December 2015. Ultimately, the Board finds the severity, frequency, and duration of the Veteran’s symptoms, both listed and unlisted, more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating, and especially a 70 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Despite the Veteran reporting that she tends to self-isolate, she also reported that her leisure activities include socializing and playing bingo. She also reported that she drove to her appointments despite complaints of anxiety related to driving. The board finds that the Veteran’s feelings of anxiousness and irritability are more akin to the 30 percent rating which includes feelings of depression and anxiety, and suspiciousness. The Veteran’s reports of how often her panic attacks occur is inconsistent throughout the entire period on appeal. At points, she reported two panic attacks per week, other times she reported panic attacks every other day, but VA treatment records were often silent as to any complaints or mentions of panic attacks or symptoms thereof. Mental status examinations in VA treatment records, SSA examinations, and VA examinations indicate that the Veteran generally had an appropriate affect, no impaired judgment, generally normal conversation and speech, normal thought processes and content, and no memory loss. There are instances in the record where the Veteran’s affect as observed to be other than appropriate, such as the February 2014 SSA psychological examination and the June 2014 VA treatment record, however, as discussed above, the Veteran’s affect was found appropriate multiple times throughout VA treatment records. Additionally, the December 2016 VA treatment record in which the Veteran’s speech was noted as “constricted” it was also noted to be congruent with her thoughts, and the doctor further noted that the Veteran’s speech was within normal limits and only constricted when she was asked to reconcile her conflicting statements as to her symptoms. While the Veteran did experience symptoms contemplated by or similar to the 50 percent rating, including an observed “constricted” affect in February 2014, “restricted, depressed, blunt, flat” affect in June 2014, and circumstantial speech in December 2016, the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As discussed above, the Veteran’s reported occurrence of panic attacks is inconsistent throughout the period on appeal, with one mention of them occurring every other day, but a majority of treatment records stating that they happen at most twice per week, or they are not mentioned at all. The Board further acknowledges that the Veteran’s adjustment disorder with anxiety could impact her work, however, the record shows that she has not worked since 2009. As such, all statements concerning the impact of the Veteran’s psychological disorder on her occupational impairment were made after she stopped working. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. In short, the preponderance of the evidence weighs against finding that, prior to November 14, 2018, the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a higher 50 percent or even greater rating. So, for this initial period, the criteria for a 50 percent or higher rating are not met and the appeal concerning this initial period must be denied. REASONS FOR REMAND Entitlement to a TDIU, including on an extra-schedular basis, is remanded. At the outset, the Board would like to address the issues raised in the November 2019 JMPR. The Court noted that the Board had erred in relying on a November 2018 VA examiantion in denying entitlement to a TDIU without explaining why the examiner had stated that his explanation for his findings should be considered estimates of impairment. A review of the November 2018 VA Mental Disorders examination shows that the examiner stated, “this examiner did not have access to impartial third-party information (such as from current/past employers). Therefore, these are the impressions of this examiner based upon the information available. Impartial third-party information was not provided by VBA [the Veterans Benefits Administration] and thus the claimant’s subjectively reported functional impairment and psychological testing, the Veteran’s records, and this clinician’s impression were the only sources of information. Thus, these findings can be considered estimates of impairment.” Essentially, the November 2018 VA examiner is acknowledging that, although VA requested information from the Veteran’s previous employers, the employers did not repspond with the requested impartial information, or any information, concerning the Veteran’s previous employment and the impact, if any, her adjustment disorder with anxiety had on her ability to obtain and maintain substantially gainful employment. The Board also notes that the October 2014 VA Request for Employment Information, sent to the Veteran’s reported most recent employer, Department of Housing and Urban Development (HUD), is contained in the file, however, the file copy is missing the actual form, VA Form 21-4192. Thus, it is unclear as to whether the requisite form was sent to HUD and, on remand, VA will take steps to properly develop this claim, including requesting employment information from the Veteran’s previous employers. At least currently, the Veteran’s service-connected adjustment disorder with anxiety does not meet the threshold minimum schedular rating requirements for a TDIU according to 38 C.F.R. § 4.16(a). This is her only service-connected disability and it has been rated as 50-percent disabling effectively since November 14, 2018, but in this circumstance of just one service-connected disability it must be rated as at least 60-percent disabling. It is still possible, however, to establish entitlement to a TDIU in this situation, albeit instead under the extra-schedular provisions of § 4.16(b), if it is shown the Veteran is unemployable on account of the service-connected disability.   After the November 2019 JMPR, the Veteran submitted a private vocational assessment in March 2020. This private assessment was completed by J.S., a Vocational Rehabiliation Consultant. After a vocational interview with the Veteran, J.S. opined that “[g]iven what appears to be the chronicity, severity, and permanency of [the Veteran’s] service-connected psychiatric symptoms . . . it is my opinion that she has not been able to neither [sic] secure nor follow any significantly gainful occupation within the general labor market since at least July 2011 when she became service connected for her mental health condition.” The Board consequently is referring this TDIU claim to VA’s Director of Compensation Service for extra-schedular consideration under § 4.16(b) since the Board is precluded from granting this benefit on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008). Accordingly, this matter is REMANDED for the following action: 1. Send a Request for Employment Information, including VA Form 21-4192, to the Veteran’s identified previous employers, including Department of Housing and Urban Development. Document all attempts to obtain this information in the claims file.   2. After the above development is complete, refer the Veteran’s claim for a TDIU to VA’s Director of Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.