Citation Nr: 21021120 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 09-23 484 DATE: April 9, 2021 ISSUE Entitlement to a disability rating in excess of 30 percent prior to October 27, 2020, and in excess of 50 percent thereafter for service-connected adjustment disorder with depressed mood. ORDER Entitlement to a disability rating in excess of 30 percent prior to October 27, 2020, and in excess of 50 percent thereafter for service-connected adjustment disorder with depressed mood is denied. FINDINGS OF FACT 1. For the period prior to October 27, 2020, the Veteran’s service-connected adjustment disorder with depressed mood was manifested by symptoms of depression, slightly constricted affect, forgetfulness, and reduced capacity to handle stress, all of which more nearly approximates an occupational and social impairment with occasional decrease in work efficiency and with intermittent periods of an inability to perform occupational tasks. 2. For the period from October 27, 2020, the Veteran’s service-connected adjustment disorder with depressed mood was manifested by symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances all of which more nearly approximates an occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. For the period prior to October 27, 2020, the criteria for a disability rating in excess of 30 percent for service-connected adjustment disorder with depressed mood have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9440. 2. For the period from October 27, 2020, the criteria for a disability rating in excess of 50 percent for service-connected adjustment disorder with depressed mood have not been met or approximated. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from November 1998 to January 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, a rating decision from September 2009 granted the Veteran entitlement to service connection for adjustment disorder with depressed mood at a 10 percent disability rating and denied entitlement to total disability based on individual unemployability due to service connected disabilities (TDIU). The Veteran, through his Attorney filed a timely Notice of Disagreement (NOD) in October 2009. A rating decision from February 2012 then found that a clear and unmistakable error had occurred, and the RO increased the Veteran’s disability rating for his service-connected adjustment disorder to 30 percent, effective August 28, 2008, the date of his original claim. The Veteran was issued a statement of the case (SOC), and the Veteran filed a timely VA Form 9 in February 2014. The Veteran requested a hearing before a Veterans Law Judge. His claims were certified to the Board in June 2014. The Veteran was given a hearing before a Veterans Law Judge in August 2015 who has since retired. The Veteran was notified of that retirement, and through his Attorney, requested another Board hearing before a different Veterans Law Judge. The Veteran then appeared before the undersigned Veterans Law Judge in a Travel Board hearing in January 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. The Veteran’s claims were then before the Board, and in a Decision from July 2019 the increased ratings claim and the TDIU claim were each remanded for additional development and adjudication. That development occurred and the claims were eventually returned to the Board in July 2020. However, due to a docketing error, the Veteran’s claims were docketed twice, which ultimately resulted in two separate Decisions. A Decision from July 7th, 2020 (Docket No. 18-17 017) denied each of the Veteran’s claims, while a separate Decision from July 8th, 2020 (the present Docket No. 09-23 484) remanded each of the Veteran’s claims. The Board has since identified the docketing error, and the Decision from July 7th, 2020 (Docket No. 18-17 017) will be Vacated in a separate Decision from the Board. As it relates to the present issues on appeal, the Board is reminded that in the July 8th, 2020 Decision, both issues were remanded for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following the Board remand, in a rating decision from December 2020, the RO increased the Veteran’s disability rating for his service-connected adjustment disorder with depressed mood from 30 percent to 50 percent, effective October 27, 2020. The Board notes however that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. That same rating decision from December 2020 granted the Veteran entitlement to TDIU, effective August 28, 2008, which represents the entire period on appeal. As such, the issue of entitlement to TDIU has been granted in full and is no longer on appeal. Finally, the Board acknowledges that the Veteran, through his Attorney, submitted Correspondence in January 2021. The Correspondence indicates that the Veteran “has no additional information to provide … before the BVA renders its next decision.” That Correspondence also states that “If the BVA is unable to provide full relieve, Veteran through Counsel requests a hearing before the BVA prior to it rendering a Decision.” In consideration of the request however, the Board recognizes that the Veteran has already had a hearing on the current issue on appeal with the undersigned Veterans Law Judge in January 2019, and that the Correspondence indicates that the Veteran has “no additional information to provide.” More importantly, the request by the Veteran’s Attorney is essentially conditional: a hearing is requested if the Board is unable to provide full relief. The condition however could not be met without the Board first rendering a Decision on the merits. As such, the conditional hearing request from January 2021 represents a legal nullity, and the Board will instead render a Decision on the merits of the issue currently on appeal. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2).   Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Entitlement to a disability rating in excess of 30 percent prior to October 27, 2020, and in excess of 50 percent thereafter for service-connected adjustment disorder with depressed mood. The Veteran is claiming that he is entitled to a higher disability rating for his service-connected adjustment disorder with depressed mood. 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. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. 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). Furthermore, when evaluating the record, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event. Only when a preponderance of the evidence is against the claim is the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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. 38 C.F.R. § 4.126. 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. Id. 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. Id. The Veteran’s service-connected adjustment disorder is rated under Diagnostic Code (DC) 9440 which governs ratings based on the regulations set forth in 38 C.F.R. § 4.126 and § 4.130, the General Rating Formula for Mental Disorders. Under the General Formula, in relevant part, a 30 percent rating is warranted for 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 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. As discussed above, in a rating decision from December 2020, the RO increased the Veteran’s disability rating from 30 percent to 50 percent, effective October 27, 2020. As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. AB v. Brown, Id. Each of the staged ratings periods are dealt with below. See Hart, Id. a) The Period Prior to October 27, 2020 Turning to the available evidence, the Veteran was given a hearing in August 2015 before a Veterans Law Judge who has since retired. During the hearing, the Veteran testified that he is forgetful around the house, and that he helps perform routine tasks, but he “needs reminders.” He testified to having panic attacks, difficulty making friends, and that he takes care of his children, although with a flattened affect. The Veteran indicated that he can “routinely clean himself up in the morning … bathe himself.” The Veteran was then given an additional hearing before the undersigned Veterans Law Judge in January 2019. During the hearing, the Veteran testified that he feels inadequate and less helpful around the house. He started that he generally has hygiene problems, insofar as he only showers “twice a month,” and that he is forgetful when it comes to cooking. He indicated that he helps around the house where he can, in that he can “pick up here and there,” and that he does not “want to be seen as lazy or unproductive.” The Veteran stated that he was frustrated generally. The Veteran’s claims file also includes a statement from the Veteran’s spouse from February 2019. Although the statement primarily discusses the Veteran’s physical pain related to his service-connected fibromyalgia, she also described the Veteran’s feelings of being “overwhelmed” with routine tasks and “day to day duties and work that had to be done.” She also described the Veteran as in “distress, depressed and at times even suicidal.” The Veteran’s spouse later described the Veteran as having difficulty focusing, that “he forgot a lot of things … appointments … pay a bill, buy necessary items, pick up something … I constantly call him during the day and remind him to check things.” Finally, she mentioned sleeping problems and him always feeling tired. The Veteran is competent to discuss that which he experiences directly, and the Veteran’s spouse is competent to describe that which she observes. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Turning to the available evidence, the Veteran’s claims file includes a treatment report from Dr. J.B., from April 2009. The medical report has been translated from German. As is related to the Veteran’s psychiatric disorder, the examiner wrote that the Veteran had “no motivation, no ambition, and no desire anymore.” The Veteran indicated that “he himself would not call it anxiety or depression, although his wife might.” The Veteran was on time for the exam, and “is well groomed.” He was described as “friendly and responsive … with no evidence of memory problems or cognitive deficits.” VAMC records associated with the Veteran’s claims file include routine screenings for depression. Although these examinations are not specifically for his service-connected psychiatric disorder, they generally indicate that he does not experience nightmares, feelings of detachment/numbness towards others, or a need to avoid thinking about certain situations. The Veteran did however report being constantly on guard, watchful and/or easily startled. See November 2010 VAMC Note. The Veteran was seen for a VA examination in September 2012. The Veteran was seen in person. During a clinical mental health evaluation, the VA examiner indicated that the Veteran arrived on-time, “showed no abnormalities,” and was dress appropriately. The examiner indicated that the Veteran was “oriented to place, time, person and situation. Cognitive functions were intact. The examiner found that the Veteran “was somewhat depressed; affect was slightly constricted.” He was not found to be a risk to himself or others. The Veteran reported feelings of depression, “and an occasional feeling of hopelessness.” The examiner described the Veteran has having a reduced “adjustment capacity to handle stress … but did not further diminish the casual correlation.” The Veteran’s claims file includes private evaluation notes from a German provider, Dr. O.R.N. These medical records are from September 2014 to September 2016 and have been translated from German. The evaluation notes are generally for physical therapy sessions; however, the Veteran is routinely screened for mental health issues. Dr. O.R.N. regularly describes the Veteran as having periods of “fatigue and depression, but under therapy he seems to improve.” The Veteran was given a VA examination in December 2019, however that VA exam was determined to be inadequate in the July 2020 Board Decision. There is no evidence that the VA examiners, the private examiners, and the VAMC staff were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran’s service-connected adjustment disorder more nearly approximates the current 30 percent disability rating. The Veteran has provided competent testimony of experiencing panic attacks, having a flattened affect, being forgetful, and showering as little as twice per month. The Veteran’s spouse also indicated that the Veteran often feels overwhelmed with routine tasks, that he needs constant reminding of routine tasks, and that he was “at times even suicidal.” Having said that, the medical evidence for this period on appeal generally describes a Veteran who is well groomed, is “friendly and responsive,” has no cognitive problems, and does not experience nightmares or feelings of detachment. The most complete examination for this period on appeal is from September 2012, whereby the Veteran had no cognitive problems, no hygiene issues, displayed full orientation, and was not found to be a risk to himself or others. Symptoms relayed were generally feelings of depression, slightly constrained affect, some reduced capacity to handle stress, and “an occasional feeling of hopelessness.” All of these symptoms more nearly approximate the 30 percent rating, as they describe “occupational and social impairment with occasional decrease in work efficiency.” The Veteran has at no point during this time period demonstrated symptomatology which more nearly approximates the higher rating of 50 percent. For example, he has never been described with circumstantial, circumlocutory, or stereotyped speech. The Veteran has not endorsed panic attacks more than once per week, and no records reflect an impairment to the Veteran’s judgment, nor his abstract thinking. To the contrary, the Veteran has been described during this period as offering good communication, being in a dedicated relationship with his wife, and being able to help out with chores around the house and to raise his children, albeit with help from reminders. In sum, there is not sufficient evidence that the symptoms of the Veteran’s adjustment disorder are of the severity and frequency to cause the level of occupational and social impairment associated with a 50 percent disability evaluation during the time period prior to October 27, 2020. The 30 percent rating best summarizes the Veteran’s occupational and social impairment as manifested by occasional decrease in efficiency. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). DC 9434. As such, based on the Veteran’s overall symptomatology and the resulting impairment occupational and social impairment stemming therefrom, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent for the period on appeal prior to October 27, 2020. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9440. b) The Period from October 27, 2020 Turning to the available evidence, the Veteran’s claims file includes a VA examination from October 2020. The Veteran was seen in person and his claims file was reviewed. The VA psychologist confirmed the Veteran’s diagnosis of adjustment disorder with mixed anxiety and depressed mood. No additional mental disorders were noted. Upon clinical testing, the examiner summarized the Veteran as having occupational and social impairment with reduced reliability and productivity. During the exam, the Veteran reported a “lack of motivation and energy,” which has contributed to “problems in his relationship with his wife.” The VA psychologist noted the following symptoms: depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran was on time for the exam, and was “adequately groomed and dressed in clean, casual clothing.” The Veteran was described as alert and oriented, with intact short-and-long-term memory. The Veteran had logical and goal-directed thought processes. He was described as having a dysthymic mood, with low energy levels, and responses which “often reflected frustration and a sense of giving up.” The Veteran exhibited emotional control “and frustration tolerance throughout the session.” There is no evidence that the VA examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran’s service-connected adjustment disorder more nearly approximates the current 50 percent disability rating for the period on appeal. To begin, the only available VA examination is also the most complete – that being the VA exam from October 2020 – to which the Board has assigned significant probative weight. The VA psychologist found symptoms of depressed mood, anxiety, chronic sleep impairment, and flattened affect – most of which reflect the lower 30 percent disability rating. The Veteran has also however displayed a lack of motivation and mood as well as difficulty in establishing and maintaining effective work and social relationships. This is also evident from the increasing strain he discussed regarding his relationship with his wife, as well as the increased frustration and “sense of giving up.” These symptoms were described by the psychologist as a general worsening of his current symptoms, which taken together with the occupational and social impairment summary, more nearly approximates the 50 percent disability rating. Having said that, the Veteran has at no point during the entire period on appeal demonstrated that his symptomatology matches the criteria required for a 70 percent disability rating, as he does not have deficiencies in most areas. At no point has the Veteran displayed suicidal ideation, obsessional rituals, obscure or irrelevant speech, or near-continuous panic. The Veteran is generally regarded as goal-oriented, and future-directed, and while the Veteran was described as having some difficulty in adapting to stressful circumstances, he was indicated to have good punctuality, hygiene, emotional control and frustration tolerance. His symptoms do not reflect a Veteran dealing with impaired impulse control, or spatial disorientation, both of which are the general criteria associated with a 70 percent disability rating. Even more emphatically, for the entire period on appeal, these traits do not reflect symptoms such 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name required to show total occupational and social impairment for a 100 percent rating. Thus, this symptomatology more nearly approximates the current 50 percent disability rating, and the preponderance of the evidence is against a finding that the Veteran’s symptomatology is of the severity and frequency to cause the level of occupational and social impairment associated with a 70 percent disability evaluation. The 50 percent rating best summarizes the Veteran’s occupational and social impairment as manifested by reduced reliability and productivity for the period from October 27, 2020, but not before. See Bankhead v. Shulkin, No. 15-2404, slip op. at 10 (U.S. Vet. App. Mar. 27, 2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). DC 9434. As such, based on the Veteran’s overall symptomatology and the resulting occupational and social impairment stemming therefrom, the Board finds that the preponderance of the evidence is against the assigment of a rating in excess of 50 percent for the Veteran’s service-connected adjustment disorder with depressed mood, from October 27, 2020. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9440. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.