Citation Nr: 21020959 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 11-10 731 DATE: April 8, 2021 +ORDER For the period prior to July 8, 2017, entitlement to a higher initial rating of 70 percent, but no higher, for adjustment disorder with depressed mood, is granted. For the period from July 8, 2017, entitlement to a higher initial rating in excess of 70 percent for adjustment disorder with depressed mood is denied. REMANDED Entitlement to an increased rating in excess of 20 percent for degenerative joint disease of the lumbar spine with herniated nucleus pulposus is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy as secondary to service-connected degenerative joint disease of the lumbar spine is remanded. FINDINGS OF FACT 1. From March 24, 2011 to July 8, 2017, the Veteran’s adjustment disorder with depressed mood was productive of occupational and social impairment in most areas. 2. For the period from July 8, 2017, total occupational and social impairment due to the Veteran’s adjustment disorder with depressed mood have not been shown. CONCLUSIONS OF LAW 1. For the period prior to July 8, 2017, the criteria for a higher initial evaluation of 70 percent, but no higher, for adjustment disorder with depressed mood, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 2. For the period from July 8, 2017, the criteria for an initial evaluation higher than 70 percent, for adjustment disorder with depressed mood, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to August 1991. The matter comes before the Board of Veterans’ Appeal (Board) on appeal from rating decisions dated March 2009, August 2013, and July 2017. The Veteran testified at an April 2019 Board Hearing before the undersigned Veterans’ Law Judge. The Board remanded the claims in November 2015 and in January 2020. Following the January 2020 Board remand, in a September 2020 rating decision, the Regional Office (RO) increased the disability rating for the Veteran’s adjustment disorder with depressed from a 30 percent evaluation to a 50 percent evaluation, for the period from March 24, 2011 to July 8, 2017. Because this increased evaluation does not constitute a full grant of the benefits sought, the increased rating issue remains in appellate status. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993). Initial Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA’s Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. Adjustment Disorder with Depressed Mood The Veteran contends that his adjustment disorder with depressed mood warrants an initial rating higher than 50 percent for the period from March 24, 2011 to July 8, 2017, and an initial rating higher than 70 percent thereafter. As the Veteran here is appealing the original assignment of a disability evaluation following the award of service connection, the entire appeal period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s adjustment disorder with depressed mood is rated under Diagnostic Code 9440. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a rating of 50 percent is assigned 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 complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. A total scheduler rating of 100 percent is warranted when the disorder 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit stated 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.” The Federal Circuit further noted that “§ 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. Thus, “[a]although 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. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether a higher evaluation is warranted. Relevant Evidence The Veteran underwent a VA Mental Disorders Disability Benefits Questionnaire (DBQ) in January 2012. The Veteran was diagnosed with adjustment disorder with depressed mood. The Veteran reported experiencing poor sleep. The examiner opined that the Veteran’s disability causes 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. The Veteran underwent a VA Mental Disorders DBQ in July 2017. The examiner confirmed a diagnosis of adjustment disorder with depression and anxiety. The Veteran’s symptoms include depressed mood, anxiety, 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, inability to establish and maintain effective relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran reported feeling anger and irritation due to not being able to work or to leave his home. He reported being a “quiet isolated person” who stays in bed sometimes all day, when he used to be an outgoing and happy person. He reported that he and his wife do things separately to avoid fights. He denied having a social life and reported that he keeps to himself and doesn’t feel like he has anything in common with anyone. He has no contact with any friend locally due to not wanting to be around anyone and feels he doesn’t really have anyone. The examiner opined that the Veteran’s adjustment disorder with depressed mood causes the Veteran occupational and social impairment with reduced reliability and productivity. At the April 2019 Board Hearing, the Veteran reported relevant symptoms of depression with crying spells that occur 2-3 times a month, and difficulty to adjusting to changes. The Veteran also stated that he thinks about death. He gets flustered when he is around a group of people or in a crowd. He gets into verbal arguments with people 2-3 times a week. He has difficulty maintaining attention and concentration, and he has to reread things or rewind things. His family members tell him that he frequently repeats himself. His sleep is on and off and he only gets 5-6 hours of sleep at night. He has not always been consistent with his hygiene, including dental hygiene, and has even lost a few teeth. A January 2020 VA addendum opinion was obtained. The examiner opined that based on the review of the files, it is likely that the clinical findings in the Veteran’s July 2017 VA examination are also consistent with the degree of the Veteran’s impairment for the period from March 2011 to July 8, 2017. 1. For the period prior to July 8, 2017, entitlement to a higher initial rating of 70 percent, but no higher, for adjustment disorder with depressed mood, is granted. From March 24, 2011 to July 8, 2017, the evidence reflects that the Veteran’s adjustment disorder with depressed mood was productive of occupational and social impairment with deficiencies in most areas, warranting an increase from a 50 percent evaluation to a 70 percent evaluation. At the April 2019 Board Hearing, the Veteran reported suicidal ideation as a symptom of his adjustment disorder with depressed mood, and the Board finds that this warrants an increase in rating from 50 percent to 70 percent, as suicidal ideation is explicitly contemplated by the 70 percent rating criteria. See also Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (no analogues of suicidal ideation at evaluation levels lower than the 70 percent rating criteria; additionally, there are no there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria). To qualify for a 100 percent evaluation, however, there must be evidence of a persistent danger of hurting oneself or another, and the medical and lay evidence of record do not support that such a symptom, or similar symptom, with the requisite level of frequency, severity, and duration, exists for this period. While at the April 2019 Board Hearing, the Veteran reported passive thoughts about death, he denied homicidal ideation at the examination and in every other medical record. There is also evidence of impaired impulse control, as the Veteran had admitted to experiencing irritability and hostility, and evidence of inability to establish and maintain effective relationships, as reported by the July 2017 VA examiner, that are squarely accounted for in the 70 percent evaluation criteria. See also 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. In short, the record demonstrates that there was significant impairment associated with his adjustment disorder with depressed mood , especially in areas such as work, social and family relations, judgment, thinking, and mood, which more nearly approximates a rating of 70 percent. See 38 C.F.R. § 4.7. However, a 100-percent rating is not warranted, as the preponderance of the evidence is against a finding of total occupational and social impairment for this period. While the Veteran described having memory or attention/concentration problems, there is no evidence that the Veteran cannot remember his name or the names of family members, or is experiencing the type of memory loss that can be likened to this extent accounted for in the 100 percent rating criteria. Based on the foregoing, the Board finds that the Veteran’s memory loss is mild and that such impairment of short and long-term memory is specifically contemplated by even lower evaluations, such as the 50 percent rating criteria, which specifically account for the impairment of short and long-term memory involving the retention of only highly learned material or forgetting to complete tasks, which is the type of impairment complained of by the Veteran. Moreover, no examiner found, no medical records show, and the Veteran himself did not assert, that the Veteran experienced any symptom specifically contemplated under the 100-percent rating of DC 9411, to the requisite levels of frequency, severity, and duration that would allow for a higher rating of 100 percent for this period. See also Vazquez-Claudio, 713 F.3d at 117. In sum, the evidence shows that the overall impairment caused by the Veteran’s adjustment disorder with depressed mood symptomatology, while not squarely within the symptomatology for a 70 percent rating, as his symptomatology is also consistent with criteria in ratings lower than 70 percent, more nearly approximates occupational and social impairment with reduced reliability and productivity, for the period from March 24, 2011 to July 8, 2017. Furthermore, the Board has also considered the Veteran’s statements regarding his adjustment disorder with depressed mood symptoms. The Veteran’s statements are competent evidence as to the symptoms of his adjustment disorder with depressed mood as this comes to him through his senses. Moreover, his statements are credible as they are consistent with the medical evidence of the record. However, his statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Evidence concerning the nature and extent of the Veteran’s adjustment disorder with depressed mood symptoms has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran’s adjustment disorder with depressed mood symptoms than his statements. Given such, the Board does not find that a rating of 100 percent, as the record stands, is warranted. In light of the above, the Board finds that for the period from March 24, 2011 to July 8, 2017, the preponderance of the evidence reflects that the Veteran’s disability has been productive of occupational and social impairment with deficiencies in most areas, warranting a higher initial rating of 70 percent, but no higher, for this period. 2. From July 8, 2017, entitlement to an initial rating for adjustment disorder with depressed mood in excess of 70 percent is denied. Turning to the period from July 8, 2017, the Board finds that the preponderance of the evidence reflects that the Veteran’s adjustment disorder with depressed mood has been productive of occupational and social impairment with deficiencies in most areas throughout this appeal period. Throughout the appeal period there is evidence of impaired impulse control. The October 2015 VA examination report further reflects the Veteran’s symptoms, including impaired impulse control, such as unprovoked irritability with periods of violence, which is fully accounted for in the 70 percent evaluation criteria. See 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (“impaired impulse control, such as unprovoked irritability with periods of violence”). In short, the record, throughout the rating period, demonstrates significant impairment associated with PTSD, especially in areas such as work, social and family relations, judgment, thinking, and mood, which more nearly approximates a rating of 70 percent. See 38 C.F.R. § 4.7. However, a 100-percent rating is not warranted, as the preponderance of the evidence is against a finding of total occupational and social impairment for this period. While the Veteran described having memory or attention/concentration problems, there is no evidence that the Veteran cannot remember his name or the names of family members, or is experiencing the type of memory loss that can be likened to this extent accounted for in the 100 percent rating criteria. Based on the foregoing, the Board finds that the Veteran’s memory loss is mild and that such impairment of short and long-term memory is specifically contemplated by even lower evaluations, such as the 50 percent rating criteria, which specifically account for the impairment of short and long-term memory involving the retention of only highly learned material or forgetting to complete tasks, which is the type of impairment complained of by the Veteran. Moreover, no examiner found, no medical records show, and the Veteran himself did not assert, that the Veteran experienced any symptom specifically contemplated under the 100-percent rating of DC 9411, to the requisite levels of frequency, severity, and duration that would allow for a higher rating of 100 percent for this period. See also Vazquez-Claudio, 713 F.3d at 117. In light of the above, the Board finds that the Veteran’s adjustment disorder with depressed mood symptoms, considered in isolation from his other service-connected disabilities, do not demonstrate total impairment, as illustrated by the criteria for a 100-percent rating for this period. Furthermore, the Board has also considered the Veteran’s statements regarding his adjustment disorder with depressed mood symptoms. The Veteran’s statements are competent evidence as to the symptoms of his adjustment disorder with depressed mood as this comes to him through his senses. Moreover, his statements are credible to the extent that they are consistent with the medical evidence of the record. However, his statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes. See Robinson, 557 F.3d at 1355. Evidence concerning the nature and extent of the Veteran’s adjustment disorder with depressed mood symptoms has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran’s adjustment disorder with depressed mood symptoms than his statements. Given such, the Board does not find that a rating of 100 percent, as the record stands, is warranted. In sum, the evidence shows that the overall impairment caused by the Veteran’s adjustment disorder with depressed mood symptoms symptomatology more nearly approximates occupational and social impairment with reduced reliability and productivity. Therefore, an increase in excess of 70 percent for adjustment disorder with depressed mood symptoms must be denied. REASONS FOR REMAND 1. & 2. The claims for entitlement to an increased rating in excess of 20 percent for degenerative joint disease of the lumbar spine with herniated nucleus pulposus and for entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy as secondary to service-connected degenerative joint disease of the lumbar spine are remanded. In January 2020, the Board remanded the spine increased rating claim for a retrospective opinion concerning functional loss for the period from June 12, 2007 to the present. The Board specifically directed for an opinion that retrospectively assesses any such additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. Although the Regional Office requested an opinion, no such opinion appears to have been actually accomplished and associated with the record. Therefore, the Board finds that remand is required as there was inadequate compliance with the Board's prior remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the Veteran’s claim for entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy as secondary to the spine disability is inextricably intertwined with the claim for entitlement to an increased rating in excess of 20 percent for degenerative joint disease of the lumbar spine with herniated nucleus pulposus. Thus, a Board decision on the radiculopathy evaluation at this time would be premature. Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, remand of the Veteran’s radiculopathy claim is required as well. The matters are REMANDED for the following action: 1. Obtain an addendum opinion by the July 2017 VA examiner, or another examiner if the July 2017VA examiner is not available. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Following a review of the claims file, the reviewing examiner is requested to provide a retrospective opinion concerning functional loss for the period from June 12, 2007 to the present. The examiner is asked to retrospectively assess such additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is specifically instructed to consider and address the Veteran’s lay statements regarding pertinent symptomatology, including those provided by the Veteran at the April 2019 Board hearing. At the April 2019 Board hearing, the Veteran attested that: (i) he has aching, radiating pain in the back and joints that span from his lower back to his hips. Any time he bends or twists, the pain “gets [him] immediately.” The pain will also “get” him when he is on his feet for any length of time. The pain makes it difficult for him to brush his teeth or shave: after he showers, he must relax for a bit, and then come back to the bathroom to shave. (ii) He stated that 2-3 times a month, he is unable to get out of bed for an entire day because of the back pain. His doctors have told him over the telephone to lay down and take it easy during these incapacitating episodes, which the Veteran stated can last a week or at least one full day and a half. The last time he had an incapacitating episode lasting one week was the last week of November: he was vising his grandchildren, and the boys got a little rambunctious with him, and he exerted himself too much, and as a result, had to be bedridden. (iii) He can only stand in one spot for about five minutes before he needs to lean on something or sit down. He has difficulty sitting for extended periods of time. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Cho, 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.