Citation Nr: 21069857 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 21-00 585 DATE: November 22, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for service-connected adjustment disorder with depressed mood is denied. FINDING OF FACT For the entire period on appeal, the severity, frequency, and duration of the Veteran's adjustment disorder with depressed mood symptoms has not more closely approximated total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for adjustment disorder with depressed mood have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 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 October 1993 to December 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in May 2021 when it was remanded for the issuance of a Statement of the Case (SOC). The SOC was issued in May 2021 and the Veteran filed his formal appeal that month. Accordingly, it has returned for adjudication. Entitlement to an initial disability rating in excess of 70 percent for service-connected adjustment disorder with depressed mood The Veteran asserts that an increased initial disability rating is warranted for his service-connected adjustment disorder with depressed mood. A disability rating is 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's adjustment disorder with depressed mood is currently assigned an initial 70 percent disability rating pursuant to Diagnostic Code 9440 for chronic adjustment disorder. Under 38 C.F.R. § 4.130, psychiatric disabilities are rated based on the General Rating Formula for Mental Disorders (General Formula) which provides disability ratings based on a spectrum of symptoms. Under the General Formula, a 70 percent evaluation 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. Id. A 100 percent evaluation is indicated where there is 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; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be due to those symptoms, a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, the Veteran was afforded a VA examination in June 2018 to assess the severity of his mental disorder. At that time, the Veteran reported being discharged from service after a suicide attempt that he related to an injury and subsequent antagonization by his fellow trainees. He stated that he was once married but divorced in 1998 after having 2 children. He has another child from his last relationship. He stated that he has had limited work opportunities. Notably, he tried to go to welding school but was unable to complete the curriculum due to his left arm disability. He attended ITT Technical Institute in 2000 but did not graduate. The Veteran reported a previous substance abuse problem but stated that he has not used it or alcohol in the previous 15 years. The Veteran endorsed symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and obsessional rituals which interfere with routine activities. The Veteran also indicated that he had not dated since his previous engagement ended in 2013. The examiner found the Veteran capable of managing his financial affairs. The examiner opined that the Veteran's level of occupational and social impairment with regards to his mental diagnoses was best summarized as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was afforded an additional VA examination in July 2019. The Veteran reported sadness "every other day" off and on throughout the day with an increased frequency since his previous examination. He reported a low mood and loss of interest in his usual activities. He stated that he was getting less pleasure out of life and endorsed symptoms of occasional crying spells, change in appetite with weight loss, sleep disturbance, alternating psychomotor agitation and retardation, low energy/fatigue, feelings of worthlessness, low self-esteem, difficulty concentrating, feelings of hopelessness, and recurrent thoughts of death. He denied current suicidal ideation, but stated he was getting there. The Veteran stated that he had problems falling asleep, would sleep 4 or 5 hours per night, and then feel tired in the morning. He took naps almost every day. The Veteran stated that he frequently had difficulty completing tasks at home due to symptoms of depression. The examiner noted that the Veteran had major depressive disorder, which was a progression of his previously diagnosed adjustment disorder with depressed mood. The Veteran reported that it was difficult for him to control his worry and that he had restlessness, was feeling on edge, was easily fatigued, had difficulty concentrating, irritability, muscle tension, and sleep disturbance. The Veteran further had panic attacks 3 or 4 times per week since he started living alone without daily assistance the previous 5 to 6 years. The Veteran stated that he was not currently in a relationship and that while his 3 children all live locally, he had not seen any of them in at least 2 months. He had occasional phone contact between visits and called his relationship with his children "fair." He further indicated he had no relationship with his half-sister but had visits with his aunt twice a week when she would make him a meal. The Veteran denied having any close friends or acquaintances but while he was frequently alone, he did not prefer it. The Veteran's most recent employment was in 1993 in the military. He denied any mental health counseling since his previous examination. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, impairment of short- and long-term memory, difficulty in understanding complex commands, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. On observation, the Veteran was alert and oriented, casually dressed, and appropriately groomed. The Veteran began crying when talking about his decreasing ability to care for himself and increased need for aid. The examiner found the Veteran capable of managing his financial affairs. Regarding his judgment, the Veteran reported getting in a verbal argument with a stranger on one occasion but denied any physical violence towards others or thoughts of hurting others or himself. The examiner found that the Veteran's mental health symptoms frequently interfere with his ability to complete tasks at home. The Veteran spends his days watching television, online on the phone, and occasionally playing video and computer games. He showered daily and left the house every day for various activities. He has no hobbies. He went to appointments twice per week, but his aide does errands and grocery shopping for him. He indicated that he does not feel like a productive or reliable person. The examiner opined that the Veteran's symptoms of major depressive disorder cause the Veteran to experience severe occupational impairment due to difficulty completing tasks, establishing and maintaining work relationships, and managing his emotions. He further exhibited severe impairment in family functioning, with little personal relationships. The examiner found the Veteran's level of occupational and social impairment best summarized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. VA treatment records during the appeal period do not demonstrate treatment for or complaints of adjustment disorder symptomatology. The Veteran was described as alert and oriented during treatment in May 2020 and despite requesting a referral to mental health, he no-showed to an outpatient mental health appointment scheduled in June 2021. After a review of the above, the Board finds that the evidence does not support a disability rating in excess of 70 percent for the Veteran's adjustment disorder at any point during the appeal period. Throughout the period on appeal, the Veteran's mental disability has been characterized by depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran has not displayed symptoms more nearly approximated by total occupational and social impairment, consistent with a 100 percent evaluation. Notably, while the Veteran reported impaired ability to maintain his personal hygiene, he indicated that such was a result of his neck and shoulder disabilities. Additionally, while the July 2019 VA examiner indicated that the Veteran's mental disabilities would "frequently interfere with his ability to complete tasks at home," he was found capable of managing his financial affairs and indicated that he showered and left the house daily for "various activities." Further, while the Veteran was not shown to work throughout the period on appeal, and the examiner noted that his adjustment disorder would have a "severe" impact on his ability to maintain employment, there is no indication that such would totally impair his employment. Indeed, the Veteran noted that he was unable to complete welding school related to his physical impairments. Finally, there is no indication that he was considered a threat to himself or others during this period. While there was a one-time incident of a verbal altercation during the appeal period, he denied any instances or thoughts of physical violence towards himself or others. He was noted to have at least minimal relationships with his aunt and children and described the relationships in positive terms, despite not seeing them very frequently. There is no evidence that he experienced delusions or hallucinations and he was described as oriented in all spheres. The Board acknowledges the Veteran's assertions of entitlement to an increased rating. Further, the Board notes that the treatment records demonstrate that the Veteran had symptoms associated with both a 70 percent disability rating, such as obsessional rituals which interfere with routine activities and near-continuous panic or depression affecting the ability to function independently, and symptoms associated with a 100 percent disability rating, such as intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. However, the weight of the medical and lay evidence shows that the severity, frequency, and duration of the Veteran's listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent disability rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent disability rating, throughout the period on appeal. See 38 C.F.R. § 4.126. (Continued on next page) Based on the foregoing, the Board finds the Veteran's adjustment disorder symptomology has been productive of, at most, occupational and social impairment with deficiencies in most areas during the entire appeal period. As such, a rating in excess of 70 percent for the Veteran's service-connected adjustment disorder with depressed mood is not warranted at any time. The preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The claim must be denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.