Citation Nr: 21021887 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 17-66 899 DATE: April 14, 2021 ORDER For the period from July 29, 2005 to November 9, 2017, entitlement to a higher initial rating of 70 percent, but no higher, for service-connected adjustment disorder with mixed anxiety, depressed mood, and panic attacks, is granted. Entitlement to individual unemployability (TDIU) on an extraschedular basis prior to February 28, 2008 is granted. FINDINGS OF FACT 1. For the period from July 29, 2005 to November 9, 2017, the Veteran’s adjustment disorder with mixed anxiety, depressed mood, and panic attacks was productive of occupational and social impairment in most areas. 2. For the period from July 29, 2005 to February 28, 2008, the Veteran’s service-connected PTSD rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the period from July 29, 2005 to November 9, 2017, the criteria for a higher initial evaluation of 70 percent, but no higher, for adjustment disorder with mixed anxiety, depressed mood, and panic attacks, 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 29, 2005 to February 28, 2008, the criteria for an award of TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1974 to September 1978. In a January 2020 Order, pursuant to the December 2019 Joint Motion for Partial Remand (JMPR), the United States Court of Appeals for Veterans Claims (Court) vacated the Board of Veterans’ Appeals (Board) April 2019 decision in part and remanded back to the Board the issue of entitlement to an initial increased rating in excess of 50 percent for adjustment disorder for the period prior to November 9, 2017. In the JMPR, the parties agreed that the Board’s total disability rating based on individual unemployability (TDIU) inquiry for the period prior to November 9, 2017 on remand may have a significant impact upon the question of whether the Veteran may be entitled to a greater-than-50 percent rating for his psychiatric disability and that the two issues are therefore intertwined. Therefore, in June 2020, the Board remanded the adjustment disorder increased rating claim for the period prior to November 9, 2017, as intertwined with the claim for entitlement to a TDIU for the period prior to November 9, 2017. In a January 2021 rating decision, the RO granted an earlier effective date for the grant of TDIU with a new effective date of February 28, 2008. The Board is cognizant of the decision in Harper v. Willkie, 30 Vet. App. 356 (2018), in which the partial grant of a Rice TDIU does not bifurcate it from the underlying increased rating claim on appeal and the issue of entitlement to TDIU must be considered for the entire appellate period. The claim for entitlement to TDIU prior to February 28, 2008 was referred the Director of Compensation and Pension Service for adjudication on an extraschedular basis. The Director rendered a January 27, 2021 opinion, denying the claim on an extraschedular basis. Thus, entitlement to TDIU prior to February 28, 2008 is now returned before the Board and is addressed below. The adjustment disorder increased rating claim for the period prior to November 9, 2017 is also now returned before the Board. 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 Mixed Anxiety, Depressed Mood, and Panic Attacks The Veteran contends his adjustment disorder with mixed anxiety, depressed mood, and panic attacks warrants an initial rating higher than 50 percent for the period from prior to November 9, 2017. 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 mixed anxiety, depressed mood, and panic attacks is rated under Diagnostic Code 9434. 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 was hospitalized at a VA Medical Center for several days in September 1982 after “complaining that he was thinking of killing himself. He said that his father had taken a hand-gun away from him about 45 minutes or an hour prior to coming to the hospital.” The Veteran reported a prior history of several psychiatric hospitalizations. “At team staffing and assessment it was felt that the [Veteran’s] chief complaints were that of a negative attitude towards life and a feeling of boredom and uselessness.” The Veteran reported being under a great deal of stress on active service aboard a U.S. Navy submarine with the capability of firing Trident missiles. The Axis I diagnoses included adjustment disorder with anxious and depressed mood and possible delayed post-traumatic stress syndrome. The Veteran underwent a VA Initial Evaluation for Posttraumatic Stress Disorder (PTSD) in January 2007. He reported mood swings, irritability, and poor socialization. He feels his aggressiveness has led to his loss of employment. The Veteran is otherwise reportedly able to perform his activities of daily living. The Veteran had a linear flow of thought, and no delusions or hallucinations. He denied suicidal/homicidal ideation at the time of the interview. He is capable of maintaining personal hygiene and other basic activities of daily living. He complains of memory issues with recent events, but the examiner reported that his memory appears to be intact at the time of the examination. He has clear speech. He felt suicidal 6 weeks ago. The Veteran underwent a VA Mental Disorders examination in May 2007. The Veteran reported that in 1982 he was hospitalized for 2 months due to suicidal ideations. He was then hospitalized in 1983 for 10 days. He was then hospitalized in August 1997 for overdosing. There was no hospitalization since his last rating examination in January 2007. He related he experienced suicidal ideation the last time in December 2006 and asked his wife to hide his gun. He showed linear flow of thought, no delusions, hallucinations, or inappropriate behavior. He is able to maintain minimal personal hygiene and is oriented to person, place, and time. His memory is intact for immediate, recent, and remote memory. He did not report panic attacks. He has felted depressed and anxious, ultimately experiencing suicidal ideation. He is irritable and experiences moderate issues with socialization. The Veteran underwent a VA Mental Disorders examination in January 2011. The Veteran reported having panic attacks and nightmares once or twice a year. He does not have any friends and socializes infrequently. He reported that he experiences minimal to no symptoms at the present time of the examination. The Veteran’s thought process and communication skills appeared to be within normal limits. He denied having any symptoms of delusions or hallucinations and none were apparent during the interview. No grossly inappropriate behavior was apparent during the interview. The Veteran denied having any current suicidal or homicidal ideation, plan or intent. He appeared able to maintain personal hygiene and basic activities of daily living. His short and long-term memory appeared to be without gross deficits although he reported mild difficulty with long-term memory. He did not report any history of obsessive or ritualistic behaviors, and none were apparent during the clinical interview. His speech was normal in rate, tone, and inflection and he appeared grossly logical and well-oriented. The examiner noted that except for his reported suicidal attempts, the Veteran presented no history of impaired impulse control. 1. For the period from July 29, 2005 to November 9, 2017, entitlement to a higher initial rating of 70 percent, but no higher, for service-connected adjustment disorder with mixed anxiety, depressed mood, and panic attacks, is granted. For the period from July 29, 2005 to November 9, 2017, the evidence reflects that the Veteran’s adjustment disorder 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. Specifically, the medical evidence for the period from July 29, 2005 to November 9, 2017 show 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. 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, which are squarely accounted for in the 70 percent evaluation criteria. See also 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. 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 Board notes that the Veteran has multiple episodes of suicidal ideation, to qualify for a 100 percent evaluation, there must be evidence of a persistent danger of hurting oneself, and the medical and lay evidence of record do not support that such a symptom or similar symptom exists for this time period. Here, the Veteran denied having suicidal ideation at the time of all of his examinations. 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. 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 July 29, 2005 to November 9, 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 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 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 July 29, 2005 to November 9, 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. Entitlement to individual unemployability (TDIU) on an extraschedular basis prior to February 28, 2008 is granted. As discussed in the Introduction, in January 2021, the Director of Compensation and Pension Service denied the Veteran’s claim for TDIU prior to February 28, 2008. However, based on a de novo review of the Director’s decision and the evidence of record, the Board finds that the claim for TDIU prior to February 28, 2008 is warranted. See Anderson, 22 Vet. App. at 427-28. Total disability exists when an impairment of mind or body is sufficiently incapacitating that it prevents the average person from securing or following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). A total disability rating may be assigned when the scheduler rating is less than 100 percent and the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. See 38 C.F.R. §§ 3.341 (a), 4.16(a). A Veteran’s level of education, special training, and previous work experience may be considered as part of a TDIU claim. A Veteran’s age or impairment(s) caused by non-service-connected disabilities may not be considered as part of a TDIU claim. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.18. The critical inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). If unemployability is the result of only one service-connected disability, this disability must be rated at 60 percent or more. See 38 C.F.R. § 4.16 (a). Here, the Veteran’s service-connected adjustment disorder, for the period from July 29, 2005 to February 28, 2008, is now rated at 70 percent. Therefore, his service-connected adjustment disorder meets the threshold scheduler criteria for consideration of TDIU under 38 C.F.R. § 4.16 (a). The question thus becomes whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his adjustment disorder. See 38 C.F.R. § 4.16 (a). Here, the VAMC treatment records, the Veteran reported last being gainfully employed in 2005. The El Paso VAMC treatment records also have multiple reports of unemployment information specifically on the C&P exam reports of February 2011, April 2007, and January 2007. Moreover, in the December 2019 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board recognized that the Veteran “has not worked since 2005 [at least in part because] he could not maintain employment because he would become confrontational with authority and be irritable and indecisive.” The parties also agreed that the Board acknowledged and did not dispute the Veteran’s allegation that he “stopped working [in part] because of . . . his depression,” and that this evidence reasonably suggested that appellant may have been rendered unable to secure and maintain reasonably gainful employment. (Continued on the next page)   Based on the foregoing, the Board finds that evidence is at least in equipoise for finding that a grant of TDIU is warranted. TDIU prior to February 28, 2008, is therefore granted. K. Anderson Acting 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.