Citation Nr: 21064782 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-40 853 DATE: October 21, 2021 ORDER Entitlement to an increased evaluation in excess of 30 percent for adjustment disorder with depression and anxiety is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's adjustment disorder with depression and anxiety has not been productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for adjustment disorder with depression and anxiety have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1999 to November 1999; August 2004 to October 2004; July 2005 to December 2005; and October 2007 to October 2009. This appeal to the Board of Veterans' Appeals (Board) arose from a rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided with a hearing before the undersigned Veterans Law Judge (VLJ) in September 2017. A copy of the transcript has been associated with the claims file and reviewed accordingly. This claim was last before the Board in April 2020, at which time the Board denied entitlement to the benefits sought. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and in a July 2021 Joint Motion for Partial Remand (Joint Motion), the claim was remanded back to the Board for adjudication. In pertinent part, the Joint Motion discussed the results of an August 2019 private psychiatric assessment which it found the Board did not previously discuss in the April 2020 decision. As such, it was directed that, upon remand, this treatment record should be considered and discussed in any ensuing decision. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107 (a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). The Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's service-connected adjustment disorder with depression and anxiety (hereinafter psychiatric disability) is rated as 30 percent disabling in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9440. A 30 percent rating is warranted for 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. A 50 percent rating is warranted for 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. Id. 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), and an inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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, an 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 Veteran's records have shown that he has displayed symptoms of mild depression and anxiety as well as sleep disturbances. His condition has resulted in difficulties with family life, and he is now currently separated from his spouse. The Veteran was provided with a VA examination in January 2011. At this examination, the Veteran was diagnosed with an adjustment disorder with depression and anxiety. The Veteran was found to have symptoms of anxiety, depression, and sleep disturbances. The Veteran was taking medication with good results. There were no effects on employment, as the Veteran had stopped working in 2010, but this was not due to his psychiatric disability. He reported good relationships with his girlfriend and children. He enjoyed watching television in his leisure time. The Veteran was provided with a global assessment of functioning (GAF) score of 75, showing overall mild symptoms and impairment. The examiner found that the Veteran's psychiatric disability resulted in 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 mild to moderate symptoms. The Veteran was provided with an additional VA examination in July 2011. At this examination, the Veteran was diagnosed with an adjustment disorder with depression and anxiety. The Veteran was found to have symptoms of anxiety, and depressed mood. The Veteran was taking medication with good results. There were no effects on employment, as the Veteran had stopped working in 2010, but this was not due to his psychiatric disability. He reported good relationships with his girlfriend and children. He was in the process of recovering from homelessness with good results and participating in an online degree program. The Veteran was provided with a GAF score of 75, showing overall mild symptoms and impairment. The examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress with symptoms controlled by continuous medication. The Veteran was provided with an additional VA examination in September 2014. At this examination, the Veteran was diagnosed with an adjustment disorder with depression and anxiety. The Veteran was found to have symptoms of anxiety, sleep disturbance, and depressed mood, with lack of motivation and concentration. The Veteran was taking medication with good results. There were no effects on employment, as the Veteran had stopped working in 2010, but this was not due to his psychiatric disability. He reported good relationships with his girlfriend and children, whom he had since married and had an additional child. The examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran was provided with an additional VA examination in May 2019. At this examination, the Veteran was diagnosed with an adjustment disorder with depression and anxiety. The Veteran was found to have symptoms of anxiety and depressed mood. The Veteran was taking medication with good results. He reported good relationships with children, but was currently separated from his wife due to her having an affair. The Veteran still is able to cook and clean for himself and conduct other activities of daily living. The examiner found that the Veteran's psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Veteran has also provided the results of an August 2019 psychiatric assessment. The Veteran was shown with complaints of anxiety, depression, and hypervigilance. Other symptoms included loss of interest in usually enjoyable activities, diminished energy, easily fatigued, problems concentrating, difficulty remembering simple things, and a sense of hopelessness. There was sleep disturbance shown, averaging between 3 to 6 hours per night. The Veteran was currently living with his girlfriend with a good relationship and still had contact with his children, who were in the custody of his ex-wife. The Veteran performed chores around the house, including taking out the trash and mowing the lawn, but was limited in other activities due to his pain and pain medication for other physical disabilities. The couple regularly attended church service, though the Veteran preferred to avoid crowds whenever possible. The Veteran's concentration was such that he could not read newspapers or books, but does try to read the Bible. The examiner found that the previous diagnoses provided via the VA examinations were valid, but would separately include major depressive disorder, recurrent, and generalized anxiety disorder. He also considered it possible the Veteran had PTSSD. The examiner opined that the Veteran could not meet the mental demands of sedentary employment due to his symptoms, which included near-continuous anxiety and depression, an inability to stay on task, and inability to maintain effective work and personal relationships. The Board finds that the evidence over-all, does not support a rating higher than 30 percent. The level of occupational and social impairment due to a psychiatric disorder is the primary consideration in determining the severity of a psychiatric disorder for VA purposes. The Board finds that the symptoms associated with the Veteran's service-connected psychiatric disability appeared to be mild to moderate, consisting of depression, anxiety, sleep disturbance, and disturbances in motivation or mood. Notably, the Veteran still maintains regular contact with his children, and is also able to conduct activities of daily living. He is able to carry out social functioning necessary for his self-care and relationships. Additionally, the Veteran has not shown more severe type symptoms as contemplated by the rating schedule for a 50 percent evaluation or higher. In order to warrant a higher evaluation, the Veteran would need to show at least 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. However, this is not shown by the overall record. In regard to the findings of the August 2019 psychiatric provider, they are plainly inconsistent with the totality of the evidentiary record showing more mild to moderate effects, including at a May 2019 VA examination administered just three months earlier. The findings of the August 2019 examination did not account for how such a significant change in the Veteran's psychiatric functioning could have occurred in such a short amount of time. Notably, the May VA examiner acknowledged a period of stress could produce a decrease work efficiency and ability to perform occupational tasks, which the August examiner could have captured in his account. Further, it appears from the August 2019 provider's discussion that he was not only considering the Veteran's service-connected adjustment disorder with depression and anxiety, which he considered valid diagnoses, but also included findings of major depressive disorder and PTSD, the latter of which has been previously found to be unrelated to service in a prior unappealed May 2011 Rating Decision. Additionally, there was discussion of the Veteran's pain from his other physical disabilities and the effects of the medication he took to treat those conditions that appeared to also influence the provider's overall findings of the Veteran's psychiatric condition. As such, to the extent that the August 2019 report shows a psychiatric disability worse that the prevailing medical evidence of record, the Board does not consider it controlling, and given the conflation of additional non-psychiatric and/or non-service connected conditions with the Veteran's service-connected psychiatric disability, the Board finds the totality of the evidence does not warrant a grant of a disability rating in excess of 30 percent. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.