Citation Nr: 21064182 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-60 222 DATE: October 19, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for an adjustment disorder with mixed anxiety and depressed mood is denied. FINDING OF FACT Throughout the appeal, the Veteran's psychiatric disability was manifested by symptoms productive of no worse than occasional decrease in efficiency and intermittent periods of an inability to perform occupational tasks, but generally functioning satisfactorily with routine behavior; reduced reliability and productivity was not shown. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 30 percent for an adjustment disorder with mixed anxiety and depressed mood have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1986 to March 1987 and from March 1990 to July 1990. This appeal to the Board of Veterans' Appeals (Board) is from an October 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board remanded the matter. Entitlement to an initial rating in excess of 30 percent for an adjustment disorder with mixed anxiety and depressed mood. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings," regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran contends that his psychiatric disability warrants a higher initial rating. Although neither he nor his attorney has made any specific assertions as to why, he offered a statement in February 2018 that listed his symptoms as anxiety, chronic sleep problems, intrusive thoughts, lack of emotions, and a lack of self-esteem. See February 2018 Statement in Support of Claim. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. See 38 C.F.R. § 4.130. Based on a review of the record, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating greater than the currently assigned 30 percent rating. VA treatment records in February 2018, April 2018, June 2019, July 2019, September 2019, October 2019, and April 2020 and VA examinations in October 2017 and August 2018 show that the Veteran's psychiatric disability was primarily manifested by depression, anxiety, and sleep impairment, although anhedonia was also reported in March 2018 and May 2018. See October 2017 and August 2018 C&P Exams and July 2018, November 2019, and June 2021 CAPRI records. These symptoms, with the exception of anhedonia, are specifically listed as part of the criteria for a 30 percent rating. The Board finds the severity, frequency, and duration of the Veteran's symptoms, at most, more nearly 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. See 38 C.F.R. § 4.126. The October 2017 VA examination showed he reported he had a mild depressed mood, mild anxiety at times, and occasional irritability. In February 2018, he reported he had some depression and some anxiety and averaged six hours of sleep a night. See June 2021 CAPRI records. He specifically reported sleep difficulties in March, April, May, and August 2018 and in June 2019. Those records included reports of variable sleep, an inability to stay asleep, and sleeping five to six hours a night. See August 2018 C&P Exam and July 2018 and June 2021 CAPRI records. Thus, the record does not reflect the severity and frequency of symptoms that would cause the level of impairment contemplated for a rating greater than 30 percent. Although an April 2018 social work intake record showed he stated his anxiety was exacerbated by his medical conditions and the results of self-reported tests showed he scored moderately severe for depression and severe for anxiety, the Veteran also stated that staying busy helped manage his symptoms and that because he stayed busy at work his disability did not affect his job. Thus, even with exacerbations of symptoms the level of impairment due to his disability did not more closely approximate the level associated with a 50 percent rating or higher. See June 2021 CAPRI records. The Board also notes that the October 2017 VA examiner found that the disability was not severe enough to interfere with occupational and social functioning or require continuous medication. Even when his symptoms appeared to worsen, the August 2018 VA examiner found that the disability resulted in no worse than mild or transient symptoms that decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Thus, both VA examiners also indicated the psychiatric disability did not reflect the type or severity of symptomatology that would warrant a higher rating. The Board concludes that the symptoms associated with his disability at no time produced greater than 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. Difficulty in establishing and maintaining effective work and social relationships was not shown. Records in October 2017, August 2018, and January 2019 showed the Veteran worked full-time and had the same employer since 1996. Although he had been laid off twice, it was only for reasons unrelated to his performance. He reported on his VA examination that his work performance was good and had good relationships with coworkers and supervisors. See October 2017 and August 2018 C&P Exams and February 2019 VA 21-2507a. The benefits of taking medication and the stability of his mood are also factors that weigh against a higher rating. The August 2018 VA examination and treatment records in October 2019, January 2020, and September 2020 show that he was on medication, which helped his symptoms. Furthermore, his mood was reported as stable in August 2018, January 2020, June 2020, and December 2020. See February 2019, November 2019, and June 2021 CAPRI records. Mental status examinations in February 2018 and April 2020 reflected some depression or anxiety, but otherwise there was no irregularity noted. Mental status examinations in August 2018, July 2019, September 2019, June 2020, September 2020, and December 2020 showed the Veteran did not endorse any symptoms and his judgment and concentration were described in terms such as good, fair, or adequate. See February 2019 and June 2021 CAPRI records. The record also shows the Veteran functioned well socially in spite of his psychiatric disability. Although he reported in April 2018 that his disability negatively impacted relationships with family and close friends, the October 2017 and August 2018 VA examinations showed that the Veteran was consistent in reporting good family relationships. While he reported in August 2018 that he had only one or two friends, he indicated during his October 2017 VA examination that he never had a lot of friends. The record also shows that he enjoyed traveling, which he reported on his VA examinations. In November 2017, he stated he was going on vacation during Thanksgiving. In August 2018, he reported that he and his family traveled to several cities in Europe and on the VA examination that month he reported having travel plans to Portugal and Spain. See July 2018, February 2019 and November 2019 CAPRI records and October 2017 and August 2018 C&P Exams. In March 2018, April 2018, May 2018, and August 2018, he reported going to the gym. See July 2018 and June 2021 CAPRI records and August 2018 C&P Exam. All of these records indicate that his social functioning is good and highlights his ability to function well and independently and enjoy an active lifestyle. In short, the Veteran did not experience the type or severity of symptoms contemplated by a 50 percent rating or higher, which is at least productive of reduced reliability and productivity, and the evidence overall does not demonstrate the level of impairment associated with a 50 percent rating or higher. Instead, the Veteran's symptoms were either contemplated by or more consistent with no greater than a 30 percent rating. For the reasons stated, the Board finds that a preponderance of the evidence is against a higher initial rating for the Veteran's psychiatric disability and at no time has the disability met or approximated the criteria for a higher rating. Consequently, the claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.