Citation Nr: 21026818 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-34 620A DATE: May 4, 2021 ORDER Entitlement to an initial 70 percent rating, but no higher, for adjustment disorder with depressed mood, currently diagnosed as other specified trauma and stressor related disorder, is granted. FINDING OF FACT For the entire initial rating period, the Veteran's psychiatric disorder more nearly approximates occupational and social impairment with deficiencies in most areas but does not more nearly approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for entitlement to an initial 70 percent rating for adjustment disorder with depressed mood, currently diagnosed as other specified trauma and stressor related disorder, have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9440 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1988 to May 2010. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2018 and June 2020, the Board remanded the claim for additional development. The case has since been returned to the Board for further appellate review. The Board notes that the Veteran also filed a notice of disagreement (NOD) with the denial of service connection for posttraumatic stress disorder (PTSD). In June 2020, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for issuance of a statement of the case (SOC). See Manlincon v. West, 12 Vet. App. 238 (1999). The AOJ issued a SOC in February 2021; however, the Veteran has not submitted a substantive appeal (VA Form 9). Therefore, that issue is not before the Board. The Board notes that when a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including a total disability rating based on individual unemployability (TDIU). See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In this matter, the VA medical records show that the Veteran is currently unemployed and is seeking new work, but he has not claimed that his service-connected disabilities, specifically his psychiatric disorder, prevent him from obtaining or maintaining substantially gainful employment. The Veteran plans on returning into the job market because he felt that his mind will be better if he worked. See Janaury 2021 VA Examination Report. As such, the Board finds that a claim for TDIU is not inferred by the record and the Board will not assume jurisdiction of a TDIU claim pursuant to Rice. Increased Rating Psychiatric Disability The Veteran is seeking a higher rating for his psychiatric disorder, which is currently rated at 30 percent disabling, in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9440. Under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, 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 effective work and social relationships. Id. A 70 percent evaluation is warranted when there is 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is 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. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has acknowledged the "symptom-driven nature" of the General Rating Formula and 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 has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Turning now to the relevant evidence of the record, in a March 2011 Mental Health note, it was reported that since the Veteran's felony charge of aggravated criminal domestic violence in February 2011, he experienced a decline in his mood. The Veteran endorsed depressed mood, marked disinterest in pleasure and activities, feeling worthless and guilty, difficulty completing tasks, concentration difficulties, and anxiousness pertaining to the events of his charge. See June 2019 VA Medical Treatment Records (CAPRI). In April 2011, the Veteran reported depressed mood. It was stated that he presented with impulse control disorder characteristics which have caused him emotional distress socially, occupationally and in his marital relationship. He denied experiencing any suicidal or homicidal ideations. He reported a willingness to change his impulsive behaviors. See Id. At the October 2011 VA Examination, the Veteran was diagnosed with adjustment disorder with depressed mood. He was also assessed to have personality disorder, not otherwise specified. The Veteran experienced occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational task only during periods of significant stress. The Veteran's psychiatric symptoms included depressed mood, chronic sleep impairment, and mild memory loss. The Veteran also reported reduced energy, which limited his motivation to engage in goal-directed activity. In October 2012, the Veteran reported recurrent nightmares, episodic anxiety, panic in large crowds, depression and alcohol use. The Veteran had a fear of losing control due to marital conflicts. See June 2019 VA Medical Treatment Records (CAPRI). In December 2013, the Veteran endorsed uncontrolled anger and an episode of domestic violence towards his wife. See Id. In Janaury 2014, the Veteran reported an increase in nightmares and intrusive memories from combat events during his military service. The Veteran reported that his mood was often depressed. He stated that his concentration had been impaired, making his studies more difficult. In February 2014, the Veteran endorsed becoming increasingly withdrawn, decreased concentration, and occasional jumpiness. He reported a history of hypervigilance but denied currently experiencing hypervigilance. See Id. On the October 2014 VA Examination, the examiner determined that other specified trauma and stressor related disorder was the more accurate diagnosis for the Veteran's psychiatric condition. The Veteran experienced occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational task only during periods of significant stress. The Veteran reported being separated from his wife due to domestic issues. He reported having a good relationship with his daughter and having few friends that he socialized with on occasion. The Veteran endorsed some social difficulty in crowds and feelings of nervousness. The Veteran's symptoms included depressed mood, chronic sleep impairment, and impaired impulse control, such as unprovoked irritability with periods of violence. Notable observations were that the Veteran was restless and guarded. The Veteran was capable of managing his own financial affairs. In August 2016, the Veteran reported symptoms of anxiety, depression, difficulty focusing, and hypervigilance. It was noted at the visit that the Veteran was guarded. He reported feeling agitated due to having to relay the same information already in the system. See June 2019 VA Medical Treatment Records (CAPRI). On the Janaury 2021 VA Examination, it was noted that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran denied having any current friends. He did talk with his brother twice a week. The Veteran reported experiencing symptoms of isolation and irritability since his time in the military. The Veteran's symptoms included chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Notable behavioral observation was that the Veteran was initially irritable but became euthymic as time progressed. The Veteran was capable of managing his own affairs. The examiner remarked that the Veteran currently reported experiencing depression which resulted in withdrawing and not communicating with others. His mood was somber most days. The Veteran still suffered from sleeping difficulties. It was noted that the Veteran struggled to live on his own due to mismanagement of funds. After a thorough consideration of the evidence of the record, the Board finds that the evidence reflects that the severity of the Veteran's symptoms more nearly approximates the severity level contemplated by the 70 percent rating criteria. The Board acknowledges that the examination reports have stated that the Veteran experienced social and occupational impairment contemplated by both the 30 percent and 50 percent rating criteria. However, the evidence clearly depicts that the Veteran experienced continuous irritability with periods of violence. He also was assessed to have impulse control disorder. The Veteran experienced continuous depression that resulted in social withdrawing and not engaging in as many social activities as he once did. The evidence also shows that the Veteran consistently endorsed nightmares and difficulty sleeping. Additionally, the Veteran experienced decreased energy which affected his motivation to perform certain activities. The frequency, duration, and severity level of his symptoms are more contemplative of the 70 percent rating criteria, such as impaired impulse control, near continuous depression and anxiety, and social withdrawal. However, the Veteran's condition does not exhibit total occupational and social impairment, which is encompassed by the 100 percent rating. The Veteran has consistently denied experiencing delusions and hallucinations. The Veteran has also consistently denied any suicidal or homicidal ideations. The Veteran's behavior has always been noted to be appropriate. The Board acknowledges that the Veteran has engaged in social isolation. However, the Veteran does communicate with his brother and a few friends. Additionally, as stated previously, the Veteran has expressed his plan to return to the job market. The Board should also note that in each of his evaluations, the Veteran was appropriately groomed. His speech was within the normal limits, eye contact was normal, thought processes were normal, and exhibited no difficulties in communication. The Veteran was always fully oriented with time, person, and place. The Board acknowledges notations regarding the memory impairment of the Veteran, but he never displayed forgetting names of his close relatives, own occupation, or own name. The Board also acknowledges that in the January 2021 VA examination report, it was reported that the Veteran struggled to live on his own due to mismanagement of funds. This was due to his use of credit cards and the resulting debt. The Board finds that his mismanagement of funds does not rise to the level of gross thought impairment. The evidence does not show that the Veteran is completely incapable of taking care of himself. In sum, the Veteran's psychiatric symptoms do not reach the level of severity, frequency, and type encompassed by the 100 percent rating. Accordingly, the Board finds that it is reasonable to conclude that the effects from the signs and symptoms associated with the Veteran's psychiatric disability more nearly approximate the criteria for a 70 percent schedular rating, but no higher, for the entire initial rating period. SONJA A. MISHALANIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.