Citation Nr: 21001292 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 18-04 897 DATE: January 7, 2021 ORDER Entitlement to a disability rating higher than 30 percent for service-connected chronic adjustment disorder prior to November 15, 2017, is denied. But the higher 70 percent rating for this disability, though no greater, is granted from November 15, 2017 onwards (so not just, instead, since January 11, 2018). FINDINGS OF FACT 1. Prior to November 15, 2017, the Veteran’s chronic adjustment disorder caused what amounted to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. However, since November 15, 2017 (so not just since January 11, 2018), his chronic adjustment disorder has caused instead occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment.   CONCLUSIONS OF LAW 1. Prior to November 15, 2017, the criteria were not met for a disability rating higher than 30 percent for the chronic adjustment disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434. 2. But, from November 15, 2017 onwards (so not just since January 11, 2018), the criteria are met for a higher 70 percent rating, though no greater, for the chronic adjustment disorder. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2004 to August 2009. In a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for adjustment disorder with mixed anxiety and depression mood and assigned an initial 30 percent disability rating retroactively effective from October 20, 2015. That same month, in response, the Veteran submitted a Notice of Disagreement (NOD) requesting a higher initial rating for this service-connected disability. See Fenderson v. West, 12 Vet. App. 119 (1999) (indicating that, when a Veteran appeals an initial rating, VA adjudicators must consider whether to “stage” the rating – meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others). This “staging” of the rating since has occurred because, following a January 2018 VA examination, the AOJ not only assigned an earlier effective date of June 29, 2015, but also granted a higher 50 percent disability rating as of January 11, 2018, the date of that VA examination. Moreover, in an even more recent April 2019 decision, the Board denied an initial disability rating higher than 30 percent for the chronic adjustment disorder prior to January 11, 2018, but granted an even higher 70 percent rating for this disability as of January 11, 2018 – which, again, was the date of the VA examination. The Veteran appealed to the higher U. S. Court of Appeals for Veterans Claims (Court/CAVC). In granting a November 2020 Joint Motion for Partial Remand (JMPR), the CAVC vacated the portion of the Board’s decision denying entitlement to an initial rating higher than 30 percent for the period prior to January 11, 2018, and remanded this portion of the claim back to the Board for further proceedings consistent with the JMPR. The remaining part of the April 2019 Board decision, however, which instead granted the even higher 70 percent from January 11, 2018 onwards was undisturbed. But, as concerning the immediately preceding period, the CAVC concluded the Board had failed to address that the January 2018 VA examiner noted self-harming behavior occurred as early as November 2017 when determining the effective date for the higher 70 percent rating. The appeal, therefore, is again before the Board for readjudication consistent with the terms of the CAVC granted JMPR. And, as will be discussed, while the Board again finds that a rating higher than 30 percent is not initially warranted, the higher 70 percent rating (though no greater rating) is being granted as of the earlier effective date suggested in the JMPR – namely, as of November 15, 2017. Increased Ratings Entitlement to a disability rating higher than 30 percent for service-connected chronic adjustment disorder prior to November 15, 2017, is denied. But the higher 70 percent rating for this disability, though no greater, is granted as of an earlier effective date – namely, as of November 15, 2017 rather than just since January 11, 2018. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. The Veteran currently has a 30 percent initial rating for his chronic adjustment disorder under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. Under this General Rating Formula for Mental Disorders, the criteria for a 30 percent rating are occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. The criteria for a 50 percent rating are 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. Id. The criteria for a 70 percent rating are 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. Id. The criteria for a 100 percent rating are 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; and memory loss for names of close relatives, own occupation or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has explained, evaluation under § 4.130 is “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). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18. Additionally, 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, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a).   Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. During the pendency of this appeal, the principal medical evidence material to the Veteran’s claim for an increased rating for his chronic adjustment disorder is contained in the reports of January 2016 and January 2018 VA examinations. The remainder of the medical evaluation and treatment records contain no evidence materially inconsistent with the findings of these examinations as concerning the severity of his chronic adjustment disorder, including in terms of its effect on his occupational and social functioning. Prior to November 15, 2017 In determining the appropriate rating for this initial period, the Board has considered the severity, frequency, and duration of the signs and symptoms of the Veteran’s mental disorder. The Board also has considered the examples listed in the rating criteria and finds that his reported symptoms did not rise to a level warranting a higher 50 percent or even greater rating prior to November 15, 2017. During this earlier period, the Veteran reported depressed mood, anxiety, rare panic attacks, and unproblematic nightmares. See, e.g., January 2016 VA Examination. He consistently denied homicidal or suicidal ideation and did not exhibit violent tendencies. He reported socialization with family and friends. His existing 30 percent disability evaluation accounts for his symptomatology and consequent effects. Notably, there was no persuasive indication of occupational and social impairment with reduced reliability and productivity during this period. On the contrary, the January 2016 VA examiner assessed the Veteran’s chronic adjustment disorder as being formally diagnosed, but with symptoms not severe enough either to interfere with occupational or social functioning or to require continuous medicine, which is consistent with a lesser noncompensable (0 percent) rating, so a rating lower than he already has. As such, the Board finds that the impact of the Veteran’s symptoms, when considered with the record as a whole, was not so severe as to warrant a rating exceeding 30 percent for this initial period under review. The Board has considered the Veteran’s belief that his symptoms warranted a higher rating. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (the Board is required to assess the competency and credibility, and therefore probative weight, of all relevant evidence). However, disability ratings are determined by the application of a schedule of ratings that, as already mentioned, is based on the average impairment of earning capacity – including as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which this disability is evaluated, are more probative than his self-assessment of the severity of his disability. The examinations also considered his competent (subjective) statements regarding the severity of his disability. Furthermore, the disability rating he has accounts for the symptoms that he has reported experiencing during this initial period. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim for a rating higher than 30 percent for his service-connected chronic adjustment disorder prior to November 15, 2017, is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Neither he nor his representative has raised any issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Since November 15, 2017 For this succeeding period from November 15, 2017 onwards, the Board again has considered the Veteran’s symptoms, irrespective of whether they are specifically listed in the rating criteria and find that they rise to such level of severity for a higher 70 percent rating. Notably, on this date, his friends filed a petition for involuntary commitment, and he was admitted for inpatient treatment. See, e.g., November 2017 Non-VA Hospital Care Management Note; January 2018 VA Examination. Because it was not until November 15, 2017 when the Veteran evidenced entitlement to this higher rating, this date marks the effective date of this higher rating. See Harper v. Brown, 10 Vet. App. 125 (1997). In this additional decision, the Board consequently is granting this higher rating as of this earlier date (meaning not just, instead, as of January 11, 2018, as it did in the prior decision). That said, it is possible, however, that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition” (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date”). Because of the possibility that evidence will indicate an effective date earlier than the date of the evidence, itself, the Board must be careful to not assign an effective date solely based upon the date of the examination or diagnosis. When the Board finds that a particular piece of evidence demonstrates an increased rating or earlier effective date, the Board should closely inspect that evidence for the possibility that it might also support an effective date for the award earlier than the date on which the examination, report, or diagnosis was created or received. The report of the November 15, 2017 inpatient mental health admission does not suggest or show the Veteran’s chronic adjustment disorder met the requirements for the higher 70 percent rating as of any earlier effective date – including by way of historical account of this disability. On the contrary, VA treatment records from a couple of weeks prior, in October 2017, evaluated the Veteran’s risk for signs and symptoms of suicide as low and found outpatient treatment appropriate. See, e.g., October 2017 Mental Health Note Mental Health Follow-Up and Addendum. At that time, he denied suicidal and homicidal ideations, auditory and visual hallucinations, and stated that he was last treated for his mental health in September 2015, as his symptoms were currently managed by medications.   Thus, the Board finds no basis for assigning the higher 70 percent rating prior to November 15, 2017, the date of his admission for inpatient treatment. In making its determination, the Board has considered the Veteran’s symptoms, irrespective of whether they are specifically listed in the rating criteria and finds that his reported symptoms do not rise to the level of severity required for a higher 100 percent schedular rating. At no time during this succeeding period has his speech been intermittently illogical, obscure, or irrelevant. He has not had grossly inappropriate behavior. He has not neglected his personal appearance and hygiene. He has not had gross impairment in thought processes or communication. He has not had disorientation to time or place or situation. Most importantly, there is no indication of total occupational and social impairment owing to his symptoms, however varied they may be. For these reasons and bases, the Board finds that the 70 percent disability rating is warranted for the service-connected chronic adjustment disorder as of an earlier effective date – from November 15, 2017 onwards, but not as of any even earlier date. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.