Citation Nr: 21001767 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-05 132 DATE: January 11, 2021 ORDER A rating in excess of 70 percent for chronic adjustment disorder is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The competent and probative evidence shows that the Veteran’s chronic adjustment disorder, is manifested as occupational and social impairment with deficiencies in most areas, but no higher, throughout the rating period on appeal. 2. The Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment for the entire appeal period (since April 25, 2011). CONCLUSIONS OF LAW 1. The criteria for rating in excess of 70 percent for chronic adjustment disorder are not met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, DC 9440. 2. The criteria for an award of TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to December 1982, September 1990 to May 1991, and from February 2003 to October 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has a long procedural history and been before the Board previously. In November 2015, the Board remanded the issues on appeal for additional development. The remand ordered the RO to obtain updated treatment records and to schedule a psychiatric examination. Additionally, the remand ordered the RO to develop the Veteran’s TDIU claim. This matter has now returned to the Board for appellate consideration. 1. A rating in excess of 70 percent for chronic adjustment disorder Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. “A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decreases 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the disability is productive of 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. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The record showed that the Veteran was assigned an initial disability rating of d50 percent in an August 2010 rating decision that granted service connection, effective March 13, 2009. Additionally, a December 2017 rating decision granted an increased disability rating of 70 percent, effective April 25, 2011. As noted above, in order to warrant a higher rating, the Veteran’s disability would have to be manifested by a total occupational and social impairment. The Veteran filed a claim for an increased rating for his service-connected chronic adjustment disorder on April 25, 2011. As such, the period of appeal is from one year prior to this date. 38 C.F.R. § 3.400(o)(2). After review of the relevant medical and lay evidence the Board finds that a rating in excess of 70 percent for chronic adjustment disorder, is not warranted. A February 2012 VA examination diagnosed the Veteran with an adjustment disorder with anxiety and depressive symptoms and sleep disturbances. The Veteran’s symptoms were noted to include a depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Additionally, he had difficulty establishing effective work and social relationships, and difficulty in adapting to stressful circumstances. The behavioral observation upon examination found that the Veteran was alert, oriented, cooperative, and pleasant. Additionally, he was able to follow directions properly and was dressed and groomed appropriately. Further, he had an adequate thought process, an intact judgment, an appropriate insight, an adequate problem solving, and a mildly anxious mood and affect. In addition, he had no thought disorder, odd behavior, hallucinations, delusions, or significant deficits in concentration, recall, or language. Finally, the examiner opined that the Veteran has an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 2/24/2012 VA examination. A November 2015 VA examination diagnosed the Veteran with chronic adjustment disorder with anxiety and depressive symptoms. The Veteran’s symptoms were noted to include a depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The behavioral observation upon examination found that the Veteran was oriented, appropriately groomed, and casually dressed. Additionally, he had an anxious and mildly depressed mood and affect, an intact memory, a fair insight and judgment, and no looseness of associations or flight, homicidal, or suicidal ideation. Finally, the examiner opined that the Veteran has an occupational and social impairment with reduced reliability and productivity. See 11/13/2015 C&P examination. An October 2017 VA examination diagnosed the Veteran with an adjustment disorder with mixed anxiety and depressive symptoms. The Veteran’s symptoms were noted to include a depressed mood, anxiety, suspiciousness, weekly panic attacks, chronic sleep impairment, mild memory loss, and a flattened affect. Additionally, he had disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The behavioral observation upon examination found that the Veteran was alert, oriented, cooperative, appropriately dressed and groomed, and restless. Additionally, he was able to express thoughts, but had difficulty with dates and times. Further, he had an anxious and depressed mood and affect, an adequate insight and judgment, and no thought disorder, delusions, hallucinations, or homicidal or suicidal ideation. Finally, the examiner opined that the Veteran has an occupational and social impairment with deficiencies in most areas. See 10/18/2017 C&P examination. A March 2018 VA examination diagnosed the Veteran with an adjustment disorder with mixed anxiety and depressed mood. The Veteran’s symptoms were noted to include a depressed mood, anxiety, weekly panic attacks, chronic sleep impairment, and mild memory loss. Additionally, he had disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The behavioral observation upon examination found that the Veteran had an expansive mood, an appropriate affect, and a mildly pressured speech. Finally, the examiner opined that the Veteran has an occupational and social impairment with reduced reliability and productivity. See 3/22/2018 C&P examination. A private mental status evaluation diagnosed the Veteran with an adjustment disorder with mixed emotional features, dysthymia, and insomnia. The Veteran’s symptoms were noted to include anxiety attacks, nightmares, and trouble sleeping. The behavioral observation upon examination found that the Veteran was oriented and had intact attention, memory, language, and spatial reasoning. Additionally, he made a minor repetition error. The 2018 VA examination showed that the Veteran attended church and was a mentor. Finally, the examiner opined that the Veteran’s somnolence and mild problems with focus would reduce his work performance; however, his problems did not seem sufficiently severe as to limit him from operating a car or other machinery. See 6/14/2011 Medical Treatment Record – Non-Government Facility. This competent evidence tends to weigh against a finding of total occupational impairment. Based on the totality of the evidence above, the Board finds that the Veteran’s condition most nearly approximates the criteria for a rating of 70 percent for the appeal period. In this regard, VA examinations generally showed that the Veteran was alert, oriented, cooperative, and pleasant. Additionally, he had an appropriate grooming, an adequate insight and judgment, and no thought disorder, delusions, hallucinations, or homicidal or suicidal ideation. In addition, VA medical treatment reports, to include several mental status examinations from the period on appeal, generally showed that the Veteran was alert, oriented, cooperative, and appropriately dressed and groomed. Further, he had a normal speech and eye contact, a euthymic mood, a logical and coherent thought process, and good memory, insight, and judgment. In addition, he had no delusions, hallucinations, psychomotor agitation or retardation, or homicidal or suicidal ideation. See 1/23/2013 CAPRI, at pages 21 and 111; see also 9/6/2017 CAPRI, at page 50; 11/25/2019 CAPRI, at page 18; 4/15/2020 CAPRI, at page 4; 6/30/2020 CAPRI, at page 5; 8/26/2020 CAPRI at page 14. After reviewing the relevant lay and medical evidence, the Board finds that the competent and probative evidence tends to support a finding of an occupational and social impairment with deficiencies in most areas. The Board finds that the preponderance of the evidence weighs against a higher rating. The Board recognizes the Veteran’s contentions regarding his increased adjustment disorder symptoms. He is competent to make his assertions based on his observable symptomatology and the Board finds him credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The weight of the competent, probative evidence shows the Veteran’s symptomatology reflects a frequency, severity, and duration commensurate with the criteria for a rating of 70 percent disabling. In sum, after review of all the relevant competent medical and lay evidence of record, the Board finds that the preponderance of the evidence is against the claim of entitlement to a rating in excess of 70 percent for the Veteran’s chronic adjustment disorder. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. A TDIU. The Veteran seeks entitlement to a TDIU. See 8/24/2020 VA Form 21-8940; see also 9/11/2020 VA Form 21-4192. The Veteran has indicated that, since November 2009, he has been unemployable due to his service-connected disabilities. Id. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).   In this case, the Veteran meets the percentage threshold for consideration of a TDIU for the entire appeal period (since April 25, 2011). In detail, service connection is in effect for an adjustment disorder with anxiety and depressive symptoms (50 percent from March 13, 2009; 70 percent from April 25, 2011), total knee replacement (10 percent from November 1, 2003; 100 percent from March 27, 2009; 10 percent from May 1, 2009; 100 percent from July 29, 2013; 30 percent from October 1, 2014), chondromalacia of the left knee with instability (10 percent from May 1, 2009 to July 29, 2013), tinnitus (10 percent from August 19, 2019), scar, residual of left knee replacement (noncompensable), left ear hearing loss (noncompensable), hypertension (noncompensable). Since April 25, 2011, the Veteran’s combined disability rating has been 80 percent or higher. As suggested above, a temporary total rating was briefly in effect from March 27, 2009 to May 1, 2009, and from July 29, 2013, to October 1, 2014, due to surgical treatment for the Veteran’s left knee. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this case, the evidence of record establishes that the Veteran has a high school education and last worked full-time in November 2009 in law enforcement. See 8/24/2020 VA Form 21-8940.   The record shows that the Veteran testified at a Board hearing in April 2014 before the undersigned. He testified that because of his service-connected adjustment disorder, he has difficulty sleeping and concentrating, and feels helpless, tired, and worn out most of the time. Additionally, he testified that he is hypervigilant, isolates himself in large gatherings, and has anger issues. See 3/16/2014 Hearing Testimony, at pages 4, 5, 7, 9, and 10. Regarding the Veteran’s psychiatric disorder, during the October 2017 and March 2018 psychiatric VA examinations, his symptoms were noted to include a depressed mood, anxiety, weekly panic attacks, chronic sleep impairment, and mild memory loss. Additionally, he had disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or worklike setting. See 10/18/2017 C&P Examination; see also 3/22/2018 C&P Examination. Regarding the Veteran’s left knee disability, a March 2018 VA examination showed that the Veteran underwent a total left knee replacement. The examiner endorsed a decreased ability to stand and walk. See 3/22/2018 C&P Examination. Based on the evidence above, and resolving doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. In this regard, he is no longer able to maintain employment because of his lack of concentration as well as the requirement of being around others. Additionally, the evidence of record shows the Veteran is largely socially isolated and has mood disturbances and anger outbursts. In the Board’s review of the facts, to include the Veteran’s education, work history, and impairment from his service-connected disabilities, he has a complex and multifaceted disability picture that is incompatible with substantially gainful employment. The Board further finds that sedentary work is not realistic option for the Veteran given his education level and limited work experience. As stated above, he has a high school education and last worked in 2009 as a law enforcement officer. There is no indication that the Veteran has the skills and experience to secure and maintain a job in the modern work environment. Moreover, there is no evidence that the Veteran has any experience in a socially isolated position that would be appropriate for one with his educational and occupational background. In summary, the Board finds the evidence to be in equipoise with respect to whether the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment from April 25, 2011, onward. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fuentes, Associate Counsel 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.