Citation Nr: 21062597 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-34 548 DATE: October 8, 2021 ORDER Entitlement to a rating of 50 percent and no higher for adjustment disorder from July 31, 2014 is granted. Entitlement to a rating of 70 percent and no higher for adjustment disorder from October 30, 2014 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. REMANDED Entitlement to service connection for a neck disability, to include as secondary to service-connected adjustment disorder, is remanded. FINDINGS OF FACT 1. From July 31, 2014, the record reflects that the Veteran's adjustment disorder is manifest by symptoms causing occupational and social impairment with reduced reliability and productivity. 2. From October 30, 2014, the Veteran's adjustment disorder is manifest by symptoms causing occupational and social impairment with deficiencies in most areas, such as school, family relations, thinking, and mood. 3. The Veteran's service-connected disabilities do not prevent him from obtaining and maintaining substantially gainful employment consistent with his education and occupational background. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent and no higher for adjustment disorder have been met from July 31, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440. 2. The criteria for a disability rating pf 70 percent and no higher for adjustment disorder from October 30, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2000 to September 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision. These matters were remanded by the Board in March 2019. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating higher than 30 percent for adjustment disorder prior to October 30, 2014 The Veteran contends that he should be assigned a rating higher than 30 percent prior to October 30, 2014. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, 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. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 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). In this case, a February 2015 rating decision assigned a rating of 50 percent for adjustment disorder effective October 30, 2014, the date of the Veteran's claim. When deciding an increased rating claim, the Board can consider evidence back to the date of claim, and can also look back on evidence within one year before the date of claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Because the Veteran specifically appealed the effective date of the assignment of a 50 percent rating by the February 2015 rating decision, the Board will discuss whether the evidence within one year before the October 30, 2014 date of claim warrants the assignment of a rating higher than 30 percent. The Board concludes that the Veteran's symptoms caused a level of impairment consistent with the assignment of a 50 percent rating from July 31, 2014. A 30 percent rating is assigned when symptoms 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 cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms 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 psychological opinions cause total occupational and social impairment.38 C.F.R. § 4.130, DC 9440. The evidence record supports the assignment of a 50 percent rating effective July 31, 2014. A treatment note from this date indicates that the Veteran reported poor sleep and disturbing dreams of hurting himself, resulting in three hours of sleep per night. He also reported hearing voices or noises at night when he was trying to sleep, although the treatment provider noted that these noises do not appear to be audiovisual hallucinations. The Veteran clarified that although he has had dreams of hurting himself, he would never do so in real life. The Veteran reported strong feelings of anger towards an individual who had an affair with his ex-wife, and admitted that he was arrested in 2005 for assaulting this individual. The Veteran was unsure how he would react if he encountered this individual again, but that he did not have any plans to pursue or harm this individual. He reported that he had no close friends and that the only person he felt he could rely upon was his wife. Although the Veteran reported that he was not working since discharge, he did not indicate in the record at that time that he was out of work specifically due to his psychiatric symptoms, and indicated that he had never had disciplinary problems at work. He also reported that he was spending his time caring for his children, and that he was satisfied with this use of his free time. Regularly sleeping only three hours a night would necessarily reduce the Veteran's reliability and productivity. Moreover, the Veteran's admission that he does not know what he would do if faced with the individual he assaulted in the past indicates some impaired judgment. Therefore, the first point at which an increase in the Veteran's psychiatric symptoms was factually ascertainable was this July 31, 2014 treatment note, which reflects symptoms that are more consistent with a 50 percent rating. A rating higher than 50 percent is not warranted at this point because the Veteran was not deficient in most areas. The Veteran's report of suicidal thoughts and memory problems as well as hearing non-hallucinatory noises before bed are comparable to a deficiency in the area of thinking. However, the Veteran was not deficient in most areas of his life according to the record at this time. The Veteran indicated that he had not worked since discharge, but he did not attribute his not working to psychiatric symptoms, and he indicated that he had never had disciplinary problems at work. Therefore, at this point in the record there was no indication of deficiency in the area of work. Although the Veteran indicated the degree he was pursuing had not worked out, he did not attribute any trouble with school to his psychiatric symptoms, which means there is no evidence that his adjustment disorder caused any deficiency in the area of school. The Veteran reported having no friends and only being able to rely upon his wife, but he also stated that was spending his time caring for his children, which he found a satisfactory use of his time. Therefore, although the Veteran does suffer from significant difficulty in establishing and maintaining effective social relationships, the record at this time did not reflect deficiency in the area of family. As noted above, the Veteran's assertion that he did not know what he would do if faced with the individual he assaulted in 2005 is indicative of some level of impaired judgment. However, the record does not reflect that the Veteran has an ongoing issue with unprovoked irritability that occasionally is expressed in periods of violence, but rather that the Veteran behaved violently on one occasion in the face of a highly difficult and emotionally charged situation many years previously. The record does not reflect that difficulty controlling his impulses is characteristically difficult for the Veteran in the ordinary course of his life. Therefore, the Board finds that a single incident of violence many years before the period on appeal that has not been repeated at any point during the period on appeal is more appropriately described as the sort of impaired judgment that is contemplated by the thirty percent rating than a deficiency of judgment. The July 2014 VA treatment record does indicate excessive worry, but the Veteran's report seems to indicate that this worry was not so all-consuming as to prevent him from caring for and playing with his children. Therefore, the Board finds that it does not rise ot the level of near-continuous panic affecting the Veteran's ability to function independently, and thus is not best described as a deficiency in the area of mood. For the foregoing reasons, the Board finds that the record reflects that the Veteran should be assigned a rating of 50 percent and no higher effective July 31, 2014. 2. Entitlement to a rating higher than 50 percent for adjustment disorder from October 30, 2014 The Veteran contends he should be assigned a rating higher than 50 percent for adjustment disorder. The Board will resolve doubt in the Veteran's favor and find that, although the Veteran is not deficient in the area of work because he works full-time with no accommodations and is not deficient in the area of judgment for the reasons discussed above, his adjustment disorder does cause deficiencies in most areas of the Veteran's life from October 30, 2014. Although the Veteran successfully completed his bachelor's degree during the period on appeal, the November 2017 private examination found that he was able to do so because he was accommodated by being granted extensions by certain professors, and because he was able to take his classes online. The Veteran felt that he would not have been able to complete this degree in person. While the Veteran's belief is somewhat speculative, the Board finds that if his psychiatric symptoms prevented him from completing some assignments on time and required him to obtain extensions, this interference represents a deficiency in the area of school. In the January 2015 examination the Veteran reported that he had a distant relationship with his family. He attributed this distance to his own irritability, particularly towards his older son. A June 2015 note in the Veteran's vocational rehabilitation file indicates that during times of severe anxiety he must isolate himself from his children. In the July 2019 examination he described his marriage as unhappy. Therefore, the record reflects that from October 30, 2014, the Veteran's relationship with his family had gone from largely positive or at least satisfactory, as described in the July 2014 treatment note, to distant and unhappy, to the point that he must isolate himself from his own children at times. Resolving doubt in the Veteran's favor, this change represents a deficiency in the area of family. The Veteran has a deficiency in the area of thinking because of his suicidal ideation, which the Veteran's wife reported in a May 2017 statement caused him to call a suicide hotline. He also reported difficulty staying focused and remembering names and numbers in the July 2019 examination. The May 2017 statement from the Veteran's wife also stated that he cannot concentrate at all, loses focus quickly, and forgets what he was going to say. The Veteran has a deficiency in mood because of his severe depression, which is noted in a January 2015 VA treatment note. The Veteran reported in the January 2015 examination that he rarely left home without his wife. The May 2017 statement from the Veteran's wife states that she has to make him eat and encourage him to shave or he will go days without eating and will not make himself look nice. An April 2021 statement from the Veteran's wife states that there was a period when she was afraid that he would not be able to care for their children alone while she was deployed, and so she set up family members to help. This is consistent with the November 2017 finding of near-continuous panic or depression affecting the Veteran's ability to function independently, appropriately, and effectively. This level of depression is best described as a deficiency in the area of mood. For the foregoing reasons, the Veteran's adjustment disorder causes occupational and social impairment with deficiencies in most areas, and is consistent with the assignment of a 70 percent rating from October 30, 2014. A rating higher than 70 percent is not supported by the record. The April 2021 Request for Employment Information in Connection with Claim for Disability Benefits from the Veteran's employer states that he is employed full-time without any concessions made for disability, which means that he does not suffer total occupational impairment. Although the Veteran's relationship with his family has become distant and unhappy, he reported in the January 2015 examination that he does still play with his children, and the May 2017 statement from the Veteran's wife indicates that he picks his children up from school every day, although he does need reminds. The Veteran thus does not suffer total social impairment. The Veteran's representative has pointed to a July 2014 treatment note from slightly before the period on appeal as evidence of hallucinations. The Veteran described hearing voices or noises at night when he was trying to go to sleep, but the treating clinician specifically found that these noises did not appear to be audiovisual hallucinations. This report has not been repeated at any point during the period after October 30, 2014. Therefore, the record does not support a finding of persistent delusions or hallucinations. The Veteran appropriately responded to his suicidal ideation by calling a hotline for help, and has repeatedly stated that he has no plan or intention of actually hurting himself. He thus is not a persistent danger of hurting himself. Although he has stated that he does not know what he would do if he met the individual who had an affair with his ex-wives again, he has made no attempt to seek that individual out and has not been found to be a persistent danger to others. The November 2017 private examination found that the Veteran is intermittently unable to perform activities of daily living, and referenced that the Veteran's wife prepares food and takes care of grocery shopping, and also takes care of chores and the finances. The Veteran's wife reported in the May 2017 statement that she believes he would not eat or shave if she did not urge him to do so. Although an intermittent inability to perform activities of daily living is one of the symptoms listed under the 100 percent rating criteria, the symptoms listed are mere examples. The Board must evaluate psychiatric disabilities based upon overall social or occupational impairment, not by focusing on the presence or absence of a specific set of symptoms in the DC rating criteria. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In this case, the Veteran does not show an overall total occupational and social impairment, for the reasons discussed above. Therefore, the Veteran's overall disability picture is not consistent with a 100 percent rating regardless of the presence of one of the examples of symptoms listed under the rating criteria for a 100 percent rating, and entitlement to a rating higher than 70 percent is not warranted. For the foregoing reasons, the Board will assign a rating of 70 percent and no higher for the Veteran's adjustment disorder from October 30, 2014. 3. Entitlement to a TDIU The Veteran contends that he is not able to obtain or maintain substantially gainful employment consistent with his education and occupational history due to his service-connected disabilities, and that all employment during the period on appeal is marginal employment in a sheltered environment. Although the Veteran's claim of service connection for a neck disability has been remanded, in this case, as will be explained below, the Veteran's claim is denied because he is currently fully employed. Therefore, the result of the claim of service connection for a neck disability will not change the outcome of the disposition of this TDIU claim or the reasons and bases for that decision set forth below, and it is not helpful to the Veteran to delay adjudication of the claim. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided, that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is "whether service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The level of education, special training, and previous work experience may be considered as part of a TDIU claim. Age or impairment(s) caused by nonservice-connected disabilities may not be considered when determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). During the period on appeal for entitlement to a TDIU, the Veteran is service-connected for adjustment disorder (rated as 70 percent disabling from October 30, 2014), sleep apnea (rated as 50 percent disabling from April 16, 2015), and headaches (rated as 50 percent disabling from April 16, 2015). His combined disability rating is 70 percent from October 30, 2014, and 90 percent from April 16, 2015. The schedular criteria are met throughout the period on appeal. In this case, the Veteran contends that although he works, his employment is marginal because it has been in a sheltered work environment given the accommodations and flexibility afforded to the Veteran to mitigate his service-connected disabilities. The Veteran reported in his April 2021 TDIU application that his annual income was $15,000. The Veteran's employer reported in a response to an April 2021 Request for Employment Information in Connection with Claim for Disability Benefits that the Veteran works 40-50 hours per week and has made $70,445 since September 2020. Both salary numbers are higher than the poverty threshold for one person, which is $13,171. Income and Poverty in the United States: 2020 https://www.census.gov/data/tables/2021/demo/income-poverty/p60-273.html. Therefore, the Veteran's employment is not marginal based upon income. The Board finds that the most probative evidence of record demonstrates that the Veteran's employment is not marginal on a facts-found basis either. The Veteran and his representative contend in April 2021 statements that the Veteran is only able to work due to accommodations from his employer, such as being able to take breaks or go home whenever he needs. The April 2021 Veteran's Application for Increased Compensation Based on Unemployability indicates that he only works 20 hours per week. However, the April 2021 Request for Employment Information from the Veteran's employer states that the Veteran works 40-50 hours per week and that he has not needed any concessions by reason of age or disability. The Board finds that the employer's description of the terms of the Veteran's employment is more probative than the Veteran's because the employer is more familiar with its policies towards all employees, and because the employer has no motive to overreport the Veteran's hours and income. It seems that the flexibility of schedule and tolerance of breaks that the Veteran has described is a feature of the position that is generally available to all employees, not a special accomodation made for the Veteran because of his service-connected disabilities. Therefore, the Veteran is not working in a sheltered environment, and his employment is not marginal on a facts-found basis. Although the November 2017 private examination found that the Veteran would not be able to sustain the stress and demands from a competitive work environment or be expected to engage or adequately function in substantial, gainful activity for any duration due to his service-connected psychiatric disorder, this assertion is clearly contradicted by the fact that the Veteran is currently gainfully employed. There is no indication that the Veteran's condition has materially improved since the November 2017 examination, which supports a finding that the Veteran's current employability is not the result of a significant improvement of his condition, but rather possible in spite of his condition. As the Veteran is currently engaged in substantially gainful employment, entitlement to a TDIU must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a neck disability, to include as secondary to service-connected adjustment disorder is remanded. The July 2019 VA medical opinion found that the Veteran's neck disability is less likely than not related to service with the rationale that the Veteran has multiple contributing factors resulting in his cervical spine pain. Among those factors were poor psychological and mental status. The clinician wrote that previous trauma and mental disorders, among other things, contribute to cervical spine pain. This raises the possibility that the Veteran's neck disability is secondary to his service-connected adjustment disorder. Upon remand, an opinion should be obtained that discusses whether the Veteran's service-connected adjustment disorder causes or aggravates the Veteran's neck disability. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's neck disability ia at least as likely as not (50 percent or greater probability) proximately due to service-connected adjustment disorder or aggravated (defined as any increase in disability) by service-connected adjustment disorder. The opinion offered must be supported by a complete rationale, and discuss the July 2019 opinion stating that trauma and mental disorders are contributing to cervical spine pain. 2. The AOJ must confirm that the VA medical opinion provided comports with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Budd, 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.