Citation Nr: 21011576 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 190313-3238 DATE: March 2, 2021 ORDER Entitlement to a rating of 70 percent prior to March 10, 2017, for adjustment disorder with anxiety is granted. FINDING OF FACT Prior to March 10, 2017, the Veteran’s adjustment disorder with anxiety has been manifested by social and occupational impairment in most areas with symptoms such as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting; total occupational and social impairment has not been shown. CONCLUSION OF LAW The criteria for a rating of 70 percent prior to March 10, 2017, for adjustment disorder with anxiety are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from May 2003 to May 2008 and then was a member of the United States Army Reserve who served on active duty from May 2017 to June 2017, and from January 2018 to December 2018. In June 2016, the Veteran filed an increased rating claim for adjustment disorder. The claim was denied by a Regional Office (RO) of the United States Department of Veterans Affairs (VA) in December 2016, January 2017, March 2017, and October 2017 rating decisions. The Veteran filed a Notice of Disagreement under the Legacy appeal system in December 2017. However, in June 2018, he opted into the Rapid Appeals Modernization Program (RAMP), the pilot program for the newly-enacted Appeals Modernization Act (AMA). This law created a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran elected to pursue higher level review at the RO in June 2018, withdrawing his Legacy appeal and closing the record for review. An adverse higher level review decision was issued in October 2018. In March 2019, the Veteran filed a Notice of Disagreement (VA Form 10182) seeking direct review by the Board under the AMA. 38 C.F.R. § 19.2(d), 20.202. The Board, in a July 2019 decision, in pertinent part, denied entitlement to a rating in excess of 30 percent from June 29, 2015, to January 12, 2017, for adjustment disorder with anxiety, and denied entitlement to a rating in excess of 50 percent from January 12, 2017, to March 10, 2017, for adjustment disorder with anxiety. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the matters to the Board for action consistent with the motion. As such, the issues are again before the Board for direct review. Under direct review, the Board considers the same evidentiary record as that considered by the RO in the October 2018 decision. 38 C.F.R. § 20.301. Remand is permitted only to correct a pre-decisional error or for any other error the correction of which raises a reasonable possibility of aiding in substantiating the claim. 38 C.F.R. § 20.802. The Veteran filed a claim for an increased rating for his adjustment disorder on June 25, 2016. The Board notes that in his application, the Veteran indicated that the claim pertained to the Intent to File dated June 29, 2015. The claims file contains no correspondence from the Veteran or his representative regarding an increased rating claim for adjustment disorder prior to June 2016. However, a notification letter dated June 29, 2015, references a general intent to file a claim for compensation, and in filing his formal claim for increase, the Veteran references claims tied to this intent. June 29, 2015 is considered applicable to the mental health claim as a date of intent to file a claim for increase, which was subsequently formalized. The appellate period dates from the Intent to File. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.    When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).    Separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  If the evidence for and against a claim is in equipoise, the claim will be granted.  38 C.F.R. § 4.3.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  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 required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.    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 the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).    VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits.  38 U.S.C. § 1154(a).  Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).    Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006).  However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements.  Id.  Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period.  Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).    The Veteran’s adjustment disorder is rated under Diagnostic Code 9440 and evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.30. The General Rating Formula for Mental Disorders provides that a 30 percent rating is warranted where there is 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). A 50 percent rating is warranted where there is 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 where there is 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 inability to establish and maintain effective relationships. Id. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). 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; 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. 38 C.F.R. § 4.130, 4.30. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition of similar type and degree that affect the level of occupational and social impairment. Id. The Veteran contends that he is entitled to a rating in excess of 30 percent prior to January 12, 2017 and a rating in excess of 50 percent prior to March 10, 2017 for his service-connected adjustment disorder with anxiety. The Veteran’s adjustment disorder is currently rated as 30 percent disabling, effective June 1, 2008, 50 percent disabling, effective January 12, 2017, and 70 percent disabling, effective March 10, 2017. VA records document mental health treatment visits from July to October 2015. The Board notes that the records documented the Veteran’s concerns of frustration, and relationship, legal, and sleep difficulties with denials of auditory or visual hallucinations, or homicidal or suicidal ideations. Thereafter, VA records indicate that the Veteran underwent a sleep evaluation in November 2015. The Veteran endorsed decreased performance at work, fatigue and low energy. He also reported two episodes in past two months of outbursts with yelling but denied any physical fights. The Veteran denied difficulty with concentration, depressed mood, or anxiety. VA records further note that the Veteran also denied a history of depression, manic or psychotic symptoms, suicide attempts, or a history of trauma. Subsequent VA psychology records dated March to April 2016 reflect that the Veteran primarily presented for his reported insomnia symptoms. Mental status examinations indicate that the Veteran presented as alert, engaged, oriented, talkative, and pleasant, with a bright affect bright and good mood. The Veteran was also noted to have normal speech, engaged eye contact, logical, coherent, and goal-directed thought process, and no evidence of perceptual disturbances or cognitive impairment. The Veteran was afforded a VA mental disorders examination in March 2017. The VA examiner referenced the Veteran’s diagnosis of adjustment disorder with mixed anxiety and depressed mood. He also noted that the Veteran was last afforded a VA mental disorders examination in June 2008, and that the examination would focus on the interval history between the prior examination and the then-present time. The Veteran endorsed frequent difficulties adjusting to various relationship stressors, leading to bouts of sadness, intense irritability, anger, and worry. Over the last eight plus years, the Veteran reported difficulties in social functioning, to include romantic, family, and work relationships, and noted difficulties interacting with his immediate family members, denoting significant problems with managing his anger. The Veteran stated that these difficulties had increased over time. Over the past eight plus years, the Veteran also endorsed struggles with occupational functioning, including notable difficulties adjusting to workplace demands and stressors, which included professional work relationships and the day-to-day requirements associated with his positions. While he reported that he was able to maintain consistent part-time work, the Veteran reportedly struggled in other positions that required full-time hours. He indicated that although he excelled in the performance of his duties, he would be forced or asked to leave after one to two years due to difficulties managing relationships with his supervisors and colleagues, missed work due to dysphoria, and subsequent conflict with supervisors. The VA examiner noted that while the Veteran was able to maintain full-time work for periods of time, his reported adjustment difficulties and related symptoms of dysphoria, anxiety, irritability, anger, and worry appeared to adversely impact his ability to sustain meaningful employment in his field of choice. Upon mental status examination, the VA examiner observed the Veteran to be casually dressed, well-groomed, and slightly restless and fidgety, with slightly pressured speech, strong eye contact, reportedly anxious mood, and slightly tangential but generally linear and goal directed thought process. The VA examiner further noted that the Veteran’s thought content was logical and coherent, and that he denied suicidal or homicidal ideation, plan, or intent, and no evidence of bizarre or unusual thought content. The Veteran further denied experiencing auditory or visual hallucinations or other perceptual disturbances. The examination report noted that the Veteran did not report or present with signs of acute mania, psychosis, or gross cognitive impairment, and that his insight and judgement were within normal limits. The VA examiner indicated that the Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, 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 work-like setting. The VA examiner opined that the Veteran has an occupational and social impairment with reduced reliability and productivity. Affording the Veteran the benefit of the doubt, for the entire appellate period from June 29, 2015 to March 10, 2017, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows that his disability picture more nearly approximates the level of severity contemplated by a 70 percent rating for adjustment disorder with anxiety, which contemplates impairment in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9440. The Veteran exhibited social and occupational impairment in most areas with symptoms such as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. While the severity of the Veteran’s adjustment disorder rose to the level envisioned by the 70 percent rating threshold, the Veteran did not display a manifestation of symptoms with the severity, frequency, and duration comparable of a 100 percent disability rating during this period. The March 2017 VA examiner did not note that the Veteran’s symptoms caused total occupational and social impairment. Treatment records and statements made by the Veteran also collectively did not note 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. Therefore, for the appellate period prior to March 10, 2017, an increased rating of 70 percent, but no higher, for adjustment disorder with anxiety is warranted. The Board notes that the above grant raises the Veteran’s combined rating to 100 percent for the entirety of the appellate period. Additionally, though the Veteran has been found to have a serious employment handicap and has recently been enrolled in a VA vocational rehabilitation program, he has not alleged he is unemployable due to his psychiatric disorder alone. Inference of a claim for total disability based on individual unemployability (TDIU) is therefore not warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.