Citation Nr: 21014387 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 14-24 348 DATE: March 12, 2021 ORDER A disability rating greater than 50 percent for chronic adjustment disorder with anxiety and depressed mood prior to March 11, 2009, is denied. A 70 percent rating, but no greater, for chronic adjustment disorder with anxiety and depressed mood is granted effective March 11, 2019. REMANDED The issue of a rating greater than 10 percent for left hip strain is remanded. FINDING OF FACT 1. The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas prior to March 11, 2019. 2. The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW 1. The criteria for a disability rating in excess of 50 percent for chronic adjustment disorder with anxiety and depressed mood prior to March 11, 2019, 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 2. The criteria for a disability rating in excess of 70 percent, but no greater, for chronic adjustment disorder with anxiety and depressed mood have been met from March 11, 2019. 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 had active service from August 1988 to August 2011. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) issued in May 2012. In December 2019, the Board granted a 50 percent rating for chronic adjustment disorder with anxiety and depressed mood and denied rating greater than 10 percent for left hip strain. The Veteran appealed the Board’s decision to the United Stated Court of Appeals for Veterans Claims (Court). In October 2020, the Court granted a joint motion for partial remand, vacating that part of the Board’s December 2019 Board decision that denied a rating greater than 10 percent for left hip strain and a rating greater than 50 percent for chronic adjustment disorder with anxiety and depressed mood pursuant to a Joint Motion for Partial Remand. A rating greater than 50 percent for chronic adjustment disorder with anxiety and depressed mood In October 2020, the Court vacated and remanded the Board’s decision denying a rating greater than 50 percent for chronic adjustment disorder with anxiety and depressed mood. Specifically, the Court found that the Board failed to address evidence that may indicate the Veteran having impaired impulse control which could warrant an increased rating. The evidence listed included mental health attending notes from July 2015, August 2016, October 2016, and June 2019, as well as a VA Medical Center addendum from September 14, 2017. The Veteran’s chronic adjustment disorder with anxiety and depressed mood (“adjustment disorder”) has been rated under the criteria contained in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9440, Chronic Adjustment Disorder. Under the General Rating Formula for Mental Disorders, 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 compete 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 assigned when there is objective evidence demonstrating 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when there is total occupational and social impairment, due to symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger or 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. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court held that 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 symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Court) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In August 2011, the Veteran was afforded a VA examination for his acquired psychiatric disability. In pertinent part, the Veteran did not have any suicidal or homicidal ideations. There was no discussion of any impulse impairment and the Veteran did not appear to pose any threat of danger or injury to self or others. The Veteran also denied history of violent behavior. In December 2011, the Veteran denied any history of violence, assaulting others, or legal issues. On July 27, 2015, the Veteran reported that he got angry with his sister and threw ribs out of the front door. His spouse reported that she was more concerned about the Veteran injuring himself rather than getting violent. The Veteran denied suicidal ideations. The Veteran reported that he had some, but not excessive, alcohol at the time. The staff physician referred the Veteran to the evening anger management group. On August 9, 2016, the Veteran reported “another meltdown with [his] sister.” The Veteran did not elaborate on the meltdown, and reported symptoms of irritability, isolative behaviors, intrusive memories, and negative cognitions about others and the world. He denied suicidal ideations. On October 20, 2016, the Veteran reported that his medications were not working and that he had symptoms of “some irritability, intrusive memories, emotional numbing, [and] poor sleep.” He denied any plan or intent to harm himself or others. On September 14, 2017, the Veteran reported that he had “more down mood in the last month” and had intrusive memories, avoidance of reminders, and some irritability. He had also resumed drinking. In response to the question with regards to irritable behavior, angry outbursts, or acting aggressively, the Veteran answered “moderately.” On March 11, 2019, the Veteran was afforded a VA examination for his adjustment disorder. In pertinent part, the Veteran reported that transient passive suicidal ideation without intent to harm himself but denied current or past suicidal ideation. On June 6, 2019, in response to the question with regards to irritable behavior, angry outbursts, or acting aggressively, the Veteran answered “quite a bit.” There is, however, no record of the Veteran having “unprovoked irritability with periods of violence” as contemplated in the 70 percent rating for mental disorders. Although the Veteran had “meltdowns” and endorsed symptoms of irritability, the Veteran never reported outbursts resulting in violence, much less outbursts resulting in “periods of violence.” Even if such “meltdowns” are considered as the Veteran exhibiting some symptoms of a higher rating, a holistic review of the Veteran’s symptoms demonstrate that his symptoms are better categorized by the 50 percent rating. See Vazquez-Claudio, 713 F.3d at 115-17. Moreover, some of the symptoms listed in the diagnostic code for a higher rating have not been shown at all. Thus, even after considering the Veteran’s responses to the question of irritable behavior, angry outbursts, or acting aggressively, the Board finds that the Veteran’s disability picture is best approximated by the criteria for a 50 percent evaluation prior to March 11, 2019. The evidence, however, warrants a schedular rating of 70 percent, but no greater, for the Veteran’s adjustment disorder from March 11, 2019. Although the Veteran has not exhibited a majority of the symptoms provided for a 70 percent rating, on March 11, 2019, he has reported transient passive suicidal ideation for the first time. In Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017), the Court held that the language of the general rating formula “indicates that the presence of suicidal ideation alone . . . may cause occupational and social impairment with deficiencies in most areas.” The Court also held that “insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred.” Id. Based on the Court’s holding reasoning in Bankhead, and resolving doubt in favor of the Veteran, his chronic adjustment disorder is more nearly approximated by the criteria for a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9440. His symptoms, however, have not more nearly approximated total occupational and social impairment at any point during the appeal period. Symptoms such as gross impairment in thought processes or communication; persistent danger of hurting self or others; disorientation to time and place; memory loss for names of close relatives, own occupation or name, have not been shown. The ultimate determination, however, of the degree of occupational impairment is a legal rather than a medical determination. 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination … so that the current rating may accurately reflect the elements of disability present”). As set forth below, it is determined that the Veteran’s adjustment disorder has not produced total occupational impairment. In so finding, it is noted that the evidence of record show the Veteran worked in management for the Department of Labor since leaving the military in 2011. Thus, neither the symptoms nor overall level of impairment meet the criteria for a 100 percent schedular rating under the Rating Schedule, and a rating greater than 70 percent assigned herein is therefore not warranted for the Veteran’s adjustment disorder. For the foregoing reasons, the evidence is at least in equipoise that the criteria for a 70 percent rating for the Veteran’s service-connected adjustment disorder were met on March 11, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND The issue of a rating greater than 10 percent for left hip strain is remanded. The August 2011 VA examiner acknowledged that the Veteran reported flare-ups of his left hip strain but failed to describe the impact of the reported flare-ups on the Veteran’s functional loss. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The March 2019 VA examiner noted that the Veteran did not report any flare-ups but acknowledged that repeated use over time caused functional loss. The examiner, however, did not properly account for any amount of functional loss such that the Board would be able to make a fully informed decision based on the information provided. See DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995); see also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Thus, both VA examinations are inadequate. When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following action: Schedule the Veteran for a new VA examination as to the severity of his service-connected left hip disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner must account for the Veteran’s reported flare-ups of his left hip strain and describe the impact of the reported flare-ups on the Veteran’s functional loss. The examiner also should describe functional loss observed after repeated use over time. If the examiner disagrees with prior VA examinations of record, specifically the August 2011 VA examination that noted the Veteran’s report of flare-ups and/or the March 2019 VA examination that observed functional loss after repeated use over time, the examiner must support his/her opinion with supporting rationale. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.