Citation Nr: 21015243 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 19-00 958 DATE: March 17, 2021 ORDER A 70 percent rating, but no higher, for service-connected adjustment disorder is granted. The issue of service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED The issue of service connection for bronchitis is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. 2. At the February 2021 hearing, the Veteran indicated that he wished to withdraw his appeal with respect to the claim of service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for adjustment disorder 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 the withdrawal of the issue of service connection for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1966 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in April 2016 and a Statement of the Case (SOC) was issued in November 2018. The Veteran perfected an appeal by submitting a timely VA Form 9 in December 2018. Under applicable criteria, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 19.55. In the present case, in February 2021, the Veteran indicated that he wanted to withdraw the appeal for the claim of service connection for PTSD. The Board finds that the withdrawal is explicit and unambiguous, and, as it was submitted with the assistance of his representative in front of the undersigned Veterans Law Judge, done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The Veteran and his representative appeared in a February 2021 hearing. A transcript of that hearing has been associated with the record. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. It is not expected that every case will show every criterion for a particular rating. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where, as here, a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. A 70 percent rating, but no higher, for service-connected adjustment disorder is granted. The Veteran contends that his adjustment disorder warrants a rating greater than 50 percent. He specifically contends that he is entitled to a 70 percent rating. The Veteran is currently in receipt of a 50 percent rating effective July 18, 2014, under 38 C.F.R. § 4.130, Diagnostic Code 9440. 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 U.S. Court of Appeals for Veterans Claims (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). Applying the criteria set forth above to the facts in this case and resolving doubt in favor of the Veteran, the evidence warrants a schedular rating of 70 percent for the Veteran’s service-connected adjustment disorder. However, the preponderance of the evidence is against assignment of a rating in excess of 70 percent. The Veteran also does not seek a rating higher than 70 percent. In the March 2015 VA examination, the Veteran reported that he had no social relationships, that he had a poor relationship with his adult children, and that he has contemplated suicide at times. The examiner found that the Veteran had impaired impulse control, sleep impairment, and irritability. At the February 2021 hearing, the Veteran testified that he lived in the basement to “have any type of relationship” with his wife as he needed an area where he could calm himself down. He also testified that while he did not have thoughts of suicide, he did talk to his wife about jumping off the roof. The Veteran also testified that he did not do any activities, and as he is not doing anything, he did not feel the need to bathe or brush his hair. In Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017), the Court of Appeals for Veterans Claims (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 adjustment disorder is more nearly approximated by the criteria for a 70 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9440. The Veteran’s 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 has not shown gross impairment in thought process or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living; disorientation of time or place; memory loss for names of close relatives, own occupation, or own name. 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. REASONS FOR REMAND The issue of service connection for bronchitis is remanded. After a review of the evidence, the Board finds that additional evidentiary development is necessary. VA’s duty to assist also includes obtaining a medical examination or opinion when such is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim of service connection for bronchitis, the statutory duty to assist has been triggered, as the Veteran contended that his respiratory disability is causally related to his service. The Veteran has been complaining of a chronic cough since June 2012, has chronic bronchitis listed in his past medical history, and testified at the February 2021 hearing that he had been coughing since service. He has not yet been afforded an examination for this claim. The Board thus finds that the Veteran should be afforded an appropriate examination with respect to his service connection claim for bronchitis. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of a respiratory disability. The examiner should review the virtual file. The examiner is to address the following: (a) State whether a respiratory disability is currently present. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b) Whether it is at least as likely as not (50 percent or greater probability) that a respiratory disability, if diagnosed, manifested during or is otherwise related to the Veteran’s period of active service. Rationales for all opinions are to be provided. All pertinent evidence, including both lay and medical, should be considered. The examiner may not solely rely on the absence of complaints, treatments, or diagnoses in the service treatment records. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). 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.