Citation Nr: 21014682 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 10-42 478 DATE: March 15, 2021 ORDER For the appeal period prior to May 18, 2015, entitlement to an initial rating in excess of 50 percent for service-connected adjustment disorder with mixed anxiety and depressed mood is denied. For the appeal period from May 18, 2015, to July 30, 2019, entitlement to an initial rating of 70 percent, but no higher, for service-connected adjustment disorder with mixed anxiety and depressed mood is granted. For the appeal period from July 31, 2019, entitlement to a disability rating in excess of 70 percent for service-connected adjustment disorder with mixed anxiety and depressed mood is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. For the appeal period prior to May 18, 2015, the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood was manifested by symptoms productive of occupational and social impairment with reduced reliability and productivity. 2. For the appeal period from May 18, 2015, to July 30, 2019, the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood is manifested by symptoms productive of occupational and social impairment, with deficiencies in most areas. 3. For the appeal period from July 31, 2019, the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood has not manifested in total occupational and social impairment. 4. The Veteran’s service-connected disabilities do not preclude her from being able to secure and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. For the appeal period prior to May 18, 2015, the criteria for entitlement to an initial rating in excess of 50 percent for service-connected adjustment disorder with mixed anxiety and depressed mood were not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9440. 2. For the appeal period from May 18, 2015, to July 30, 2019, the criteria for entitlement to an initial rating of 70 percent, but no higher, for service-connected adjustment disorder with mixed anxiety and depressed mood have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9440. 3. For the appeal period from July 31, 2019, the criteria for a 100 percent rating for service-connected adjustment disorder with mixed anxiety and depressed mood have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9440. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Air Force from March 1993 to September 2008. This case comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In her October 2010 substantive appeal, the Veteran requested a hearing before a member of the Board, which was scheduled for January 2014. The Veteran failed to appear for the scheduled hearing and did not request that the hearing be rescheduled; as such, the Board considers the request for a hearing to be withdrawn. The Board notes that the October 2008 rating decision granted the Veteran service connection for adjustment disorder with mixed anxiety and depressed mood and assigned a disability rating of 10 percent. Thereafter, the RO issued an October 2011 rating decision, which increased the Veteran’s initial disability rating to 50 percent for her service-connected psychiatric disability. In an October 2019 rating decision, the RO increased the rating for the Veteran’s psychiatric disability to 70 percent from July 31, 2019. However, as that award did not represent a total grant of benefits sought on appeal, the claim for a higher initial rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In April 2014, the Board remanded the claim for a higher initial rating for adjustment disorder with mixed anxiety and depressed mood for additional development. The Board also remanded the issue in September 2016 for further development. 1. Entitlement to an initial rating in excess of 50 percent from September 16, 2008, and in excess of 70 percent from July 31, 2019, for service-connected adjustment disorder with mixed anxiety and depressed mood. Disability evaluations are determined by the application of the 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 practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil 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, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When there is a question as to which of two 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. The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Currently, the Veteran is service connected for adjustment disorder with mixed anxiety and depressed mood at 50 percent from September 16, 2008, and at 70 percent from July 31, 2019, under 38 C.F.R. § 4.130, Diagnostic Code 9440. Under these criteria, a 50 percent is warranted where the psychiatric condition produces 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. 38 C.F.R. § 4.130, Diagnostic Code 9440. A 70 percent rating is warranted where the psychiatric condition produces 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 rating is warranted where the psychiatric condition results in 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. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Id. In July 2008, the Veteran was afforded a VA examination for her mental disorder. The Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood (in partial remission on medication). The Veteran worked in childcare for two years and had a good relationship with her supervisors and coworkers. At the time of the examination, the Veteran was separation and going through a divorce. She had two small children. Upon mental status examination, the Veteran was neatly and appropriately dressed and groomed. Her affect was normal in range. She did not have impaired impulse control and communication was open and easy. The Veteran did not have a history of panic attacks, delusions, or hallucinations. She did not exhibit obsessional rituals. The Veteran’s judgment was good. The VA examiner concluded that the Veteran was able to establish and maintain effective work, school, and social relationships. Her psychiatric symptoms were controlled by continuous medication. She did not appear to pose any threat of peristent danger or injury to herself or others. In March 2014, the Veteran was afforded a VA examination for mental disorders. She was diagnosed with unspecified depressive disorder, unspecified anxiety disorder, and attention-deficit/hyperactivity disorder, predominantly inattentive presentation. The Veteran’s symptoms included depressed mood, anxiety, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work and a worklike setting. The symptoms and effects of unspecified depressive disorder, attention deficit disorder, and unspecified anxiety disorder overlapped making differentiation of what portion of each symptom was attributable to each diagnosis speculative. The VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. Post military, the Veteran worked as a claims processor for 3 ½ years, but left because it was “too stressful.” She also owned and operated a children’s store from June 2012 to January 2013 but found it too stressful also. Currently, the Veteran’s symptoms of depression included sadness, crying, low motivation, and low energy. She had some feelings of guilt regarding mistakes in parenting. She stated that she had one previous suicide attempt when she had been drinking and overdosed on her prescription medications. Her friend took her to the hospital. She slept about 6 to 8 hours per night but did not feel rested the next day. She reported symptoms of anxiety, including tendency to worry. The examiner noted that the records indicated that the Veteran had a history of attention-deficit/hyperactivity disorder, predominantly inattentive presentation with symptoms of fidgeting, problems with sustained attention, difficulty organizing things, distractibility, forgetfulness, impatience and trouble waiting in line. Upon behavioral observations, verbal comprehension and speech were within normal limits. The Veteran’s mood was depressed. Her affect was constricted. The Veteran denied current suicidal or homicidal thoughts. In June 2015, the Veteran submitted a Disability Benefits Questionnaire (DBQ) for mental disorders from her psychiatrist, Dr. K.A.F., dated May 18, 2015. The psychiatrist diagnosed the Veteran with major depressive disorder, recurrent, severe, without psychotic features. Dr. K.A.F. concluded that the Veteran’s psychiatric disorder caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The psychiatrist reported that the Veteran was divorced and had three children. The Veteran had been treated for major depressive disorder with anxiety symptoms by the physician since around 2005 to 2006. Her treatment had been resistant to multiple trials of selective serotonin reuptake inhibitors, aripiprazole, amphetamine, paroxetine, bupropion, Vyvanse, duloxetine. The Veteran’s major depressive disorder symptoms continued as severe despite long term abstinence from alcohol. The Veteran’s symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and obsessional rituals which interfered with routine activities. The Veteran had severe distraction of attention and poor goal direction. The psychiatrist concluded that the Veteran’s major depressive disorder worsened since her last VA assessment/rating. Depression was resistant to the standard of care. The Veteran’s major depressive disorder had impaired her employability and lead to the loss of several jobs and impaired her ability to perform and attend school. In January 2019, the Veteran was afforded a VA examination for her service-connected psychiatric disorder. The Veteran was diagnosed with adjustment disorder with mixed anxiety and depression. The examiner concluded that the Veteran’s psychiatric symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s symptoms included depressed mood, anxiety, panic attacks that occurred more than once a week, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, flattened affect, disturbance of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner noted that there were no changes in the Veteran’s social/marital/family history since the Veteran’s previous mental health disability in May 2015. The Veteran remained unemployed. The Veteran had not been able to maintain employment. She stated that she worked for three months in esthetics but was unable to work continuously due to mental and physical issues. She was prescribed medications for her psychiatric disorder. She described her current emotional health as “poor.” She endorsed frequent moods including depression, anxiety, stress, and excessive anger. Her current symptoms included sad feelings, problems with sleeping, withdrawn/isolation, lack of loss of motivation, loss of interest in previous enjoyable activities, loss of appetite, loss of weight, negative thoughts, restlessness, irritability, concentration problems, hypervigilance, and low self-esteem. Her depression worsened with a loss of functioning. The Veteran had panic attacks and thoughts of suicide. However, she never attempted suicide. She denied any serious consideration of suicide at the time of the examination. The Veteran did not appear to pose any threat of danger or injury to herself or others. She denied delusions and hallucinations. The VA examiner reported that the Veteran’s sleeping problems and loss of motivation would hurt her reliability and productivity on a job, and that it did in the past. The Veteran’s impulsivity and irritability affected her ability to work well with others. She had difficulty communicating and remembering and following instructions. She was unable to concentrate and interact with coworkers and/or customers. She was unable to adapt to changes, stress, and demands at work. The Veteran had not had success working in a loosely supervised situation. For the appeal period prior to May 18, 2015, a rating in excess of 50 percent is not warranted for the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood. The Veteran’s symptoms included depressed mood, anxiety, disturbances of motivation and mood, sadness, crying, and difficulty in adapting to stressful circumstances, including work and a worklike setting. The Board acknowledges the fact that the Veteran stated that she had one previous suicide attempt when she had been drinking and overdosed on her prescription medication. However, the Veteran did not have multiple suicide attempts or pose a persistent danger to herself or others. The Board does not find that the Veteran’s suicidal ideation on its own warrants the consideration of the remainder of her symptoms alongside those described by the 70 percent rating, as the frequency, duration, and severity of her symptoms more closely approximated those described by the 50 percent rating overall. The Veteran did not exhibit grossly inappropriate behavior or have difficulty maintaining personal hygiene. Therefore, the Board finds that a rating in excess of 50 percent is not assignable for the appeal period prior to May 18, 2015. The Board has considered the Veteran’s lay statements in support of her claim for an increased rating for her service-connected psychiatric disorder. However, the Board concludes that the medical findings are of greater probative value than the Veteran’s allegations regarding the severity of her condition. The nature and extent of the Veteran’s disability have been addressed during the appeal period, and the medical findings directly address the criteria under which this disability is evaluated. A rating of 70 percent, but no higher, is warranted from May 18, 2015 (date of DBQ) for the Veteran’s service-connected psychiatric disorder. On her May 2015 DBQ, the psychiatrist concluded that the Veteran’s psychiatric symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran’s major depressive disorder symptoms continued as severe despite long term abstinence from alcohol. The Veteran took medications for her condition, but the medications did not help. Further, the January 2019 VA examiner concluded that the Veteran’s psychiatric symptoms caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Therefore, a rating of 70 percent is assignable from May 18, 2015, to present. A rating of 100 percent is not warranted at any point from May 18, 2015. Even though the Veteran admitted to having suicidal thoughts, she was not considered to pose a threat to herself or others. The Veteran did not have delusions, hallucinations, or gross impairment of judgment. Most importantly, the Veteran’s psychiatric symptoms did not result in total occupational and social impairment. Thus, the nature and severity of the Veteran’s psychiatric symptoms, and the occupational and social impairment arising therefrom, did not rise to the level to warrant assigning a 100 percent rating. 2. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities, or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Currently, the Veteran is service-connected for the following: (1) adjustment disorder with mixed anxiety and depression at 50 percent from September 16, 2008, and 70 percent from May 18, 2015 (recently granted in this decision); (2) tinnitus at 10 percent from September 16, 2008; (3) degenerative arthritis of the thoracic spine at 10 percent from June 22, 2012; (4) degenerative arthritis of the thoracic spine at 0 percent from September 16, 2008 to June 22, 2012; (5) maxillary sinusitis at 0 percent from September 16, 2007; (6) allergic rhinitis at 0 percent from September 16, 2008; (7) and recurrent urinary tract infections at 0 percent from September 16, 2008. For the appeal period from May 18, 2015, the Veteran’s percentage meets the rating threshold described in § 4.16(a). However, for the appeal period prior to May 18, 2015, the Veteran’s percentage does not meet the rating threshold in § 4.16(a). The Board must still determine whether the Veteran’s service-connected disabilities are so severe as to produce unemployability. The Board finds that the evidence of record does not show that the Veteran is unable to secure or follow substantially gainful employment. In November 2018, the Veteran submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran stated that her service-connected adjustment disorder, thoracic spine, and tinnitus prevented her from securing or following any substantially gainful occupation. She stated that she worked in claims from September 2008 to February 2012 and as an esthetician from October 2017 to January 2018 but resigned due to illness. She also had a position in the military reserves. In June 2019, the Veteran’s former employer responded to a VA Form 21-4192 Request for Employment Information with Claim for Disability Benefits. The Veteran worked for this employer as a Claims representative from September 2008 to February 2012. It was noted that the Veteran left her position because of the Veteran decided to voluntarily return to school. On the Veteran’s May 2015 DBQ, the VA examiner noted that the Veteran’s psychiatric disorder impaired her employability, lead to the loss of several jobs, and impaired her ability to perform and attend school. The January 2019 VA examiner reported that the Veteran’s sleeping problems and loss of motivation would hurt her reliability and productivity on a job, and that it did in the past. The Veteran’s impulsivity and irritability affected her ability to work well with others. She had difficulty communicating, remembering, and following instructions. The VA examiner further noted that the Veteran was unable to concentrate and interact with coworkers and/or customers. She was unable to adapt to changes or stress and demands at work. Although the Veteran’s psychiatric disorder made it difficult for her to be productive in a worklike setting, it did not prevent her from completely being employed and working. This is shown by the other evidence of record. For example, the Veteran’s Vocational Rehabilitation and Employment (VR & E) records show that the Veteran attended college courses after her military service. Further, in a May 2012 Counseling Record Narrative, the counselor stated that the Veteran’s psychiatric disorder was controlled by medication, and the Veteran did not report any issues with her primary disability. The counselor recommended that the Veteran should be in a smaller classroom on a small campus to prevent any under exacerbation of her cognitive ability. The counselor stated that the Veteran had no other issues that would interfere with her achieving a very successful career in business. Moreover, in a July 2019 VA psychiatry note, it was reported that the Veteran was currently working full-time. Therefore, based on the evidence of record as a whole, the Board finds that the Veteran’s psychiatric disorder limits functioning ability at work, but does not fully prevent her from performing worklike activities in an employment setting. Thus, the Board declines to remand the claim for TDIU for the appeal period prior to May 18, 2015, to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a TDIU for the entire appeal period is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, 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.