Citation Nr: 21040698 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 13-19 923 DATE: July 6, 2021 ORDER A rating in excess of 30 percent for a chronic adjustment disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Veteran's chronic adjustment disorder has not caused occupational and social impairment with reduced reliability and productivity. 2. The Veteran does not meet the schedular criteria for entitlement to a TDIU, and the evidence of record does not support a finding that the Veteran's service-connected chronic adjustment disorder renders him unable to obtain and maintain substantially gainful employment so as to warrant referral for extraschedular consideration. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for a chronic adjustment disorder have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.126, 4.130, Diagnostic Code 9440. 2. The criteria for entitlement to a TDIU and referral for extraschedular consideration of a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 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 from December 1989 to October 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision. This matter was previously remanded by the Board in June 2017 due to an unfulfilled request for a hearing. In a November 2019 statement, the Veteran's representative communicated the Veteran's intent to withdraw that hearing request. This matter is therefore properly before the Board for adjudication. During the pendency of this appeal, the AOJ reduced the evaluation for the service-connected psychiatric disorder to 0 percent effective April 1, 2018. Rating reductions claims are separate from increased ratings claims. See Dofflemeyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992); Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991). Here, the Veteran did not file a notice of disagreement (NOD) challenging the propriety of the rating reduction. Thus, the issue of whether that reduction was proper is not presently on appeal, and no further consideration is necessary. The Veteran's representative indicated in a May 2021 informal hearing brief that the Veteran wished to have a claim for service connection for post-traumatic stress disorder taken up. Thus, the issue is referred to the Agency or Original Jurisdiction. The American Legion also requested that the appeal for TDIU be deferred; however, entitlement to a TDIU is properly before the Board and will be adjudicated herein. A rating in excess of 30 percent for a chronic adjustment disorder Legal Criteria Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Psychiatric disabilities are rated based on the General Rating Formula for Mental Disorders (General Formula) codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). 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: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula per 38 C.F.R. § 4.130, a 30 percent rating is warranted when there is 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). 38 C.F.R. § 4.130. Diagnostic Code 9440. A 50 percent rating is warranted when there is 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. Id. 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 circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. In addition, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (a). The rating agency shall assign an evaluation based on all evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, 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 on the basis of social impairment. The Board notes that with regard to the use of the phrase "such as" in 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "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 only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. Factual Background & Analysis A September 2014 VA psychological examiner found that the Veteran's chronic adjustment disorder had resolved and that he does not have a psychiatric disability that is related to his service. Rather, his occupational and social impairment are attributable to a non-service-connected personality disorder and a polysubstance abuse disorder. The September 2014 VA examiner noted that the Veteran instead has an unspecified personality disorder (with mixed antisocial and narcissistic traits). The examiner explained further that individuals with personality disorders experience transient mood or anxiety symptoms as a result of their pathological behaviors that does not necessarily warrant a diagnosis of a chronic adjustment disorder. Further, the examiner questioned the credibility of the Veteran's self-report of symptoms and ultimately found that he does not have a psychiatric disability that is related to his service. Rather, his occupational and social impairment are the result of a personality disorder and a subsequent polysubstance abuse disorder. The November 2017 VA psychological examiner similarly found that the Veteran has a personality disorder and a depressive disorder that are not related to his service. This examiner specifically stated that the Veteran was unmistakably misdiagnosed with a service-connected adjustment disorder during an August 2005 VA examination. Moreover, his current psychiatric disabilities are in no way caused by, related to, or a continuation of any adjustment disorders that were diagnosed while on active duty. After a thorough review of the evidence, the Board finds that a rating in excess of 30 percent for a chronic adjustment disorder is not warranted. The United States Court of Appeals for Veterans Claims (Court) held that if it is possible to separate symptoms between a non-service-connected and a service-connected disorder, then for rating purposes VA may (indeed must) ignore the symptoms associated with the non-service-connected condition. Mittleider v. West, 11 Vet. App. 181 (1998). Critically, both the September 2014 and November 2017 VA psychological examiners found that none of the Veteran's psychiatric symptoms are attributable to his service-connected chronic adjustment disorder. Rather, his symptoms are attributable to a combination of a personality disorder, a polysubstance abuse disorder, and a depressive disorder that are entirely unrelated to his service or a service-connected chronic adjustment disorder. Consequently, the competent medical evidence weighs against finding that a rating in excess of 30 percent for a service-connected chronic adjustment disorder is warranted. The Board notes that there are various VA treatment notes regarding the Veteran's level of mental health functioning. However, the Board finds the VA examinations to be the most probative evidence of record regarding the psychiatric symptomatology attributable to the Veteran's service connected psychiatric disability. In assessing the severity of the chronic adjustment disorder, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). See March 2011 Mother's Letter; March 2016 Veteran's statement; November 2017 Buddy Statement. However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. Ultimately, the preponderance of the evidence weighs against Board finding that the Veteran's service-connected chronic adjustment disorder has caused symptoms more nearly approximating occupational and social impairment with reduced reliability and productivity. Consequently, a rating in excess of 30 percent is denied. DC 9440. Entitlement to a TDIU Legal Criteria Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure of follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § § 3.340, 3.341, 4.16(a). In order to be granted a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Although TDIU is denied on a schedular basis, it may still be assigned on an extraschedular basis under 38 C.F.R. § 4.16 (b). If the Veteran is found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). Factual Background & Analysis The Veteran's sole service-connected disability is a chronic adjustment disorder rated as 30 percent disabling. As the Veteran does not meet the schedular requirements, his claim for entitlement to a TDIU on a schedular basis must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Although TDIU is denied on a schedular basis, it may still be assigned on an extraschedular basis under 38 C.F.R. § 4.16 (b). If the Veteran is found to be unemployable by reason of service-connected disabilities, VA shall submit the case to the Director of Compensation Service for extraschedular consideration. See 38 C.F.R. § 4.16 (b). However, in this case, the Board finds that the Veteran is not unemployable solely because of his service-connected chronic adjustment disorder, and referral for extraschedular consideration is not warranted. The Veteran has subjectively reported not working since 2000 stating that he had trouble keeping jobs due to depression and an inability to get along with coworkers. See November 2017 VA Psychological Examination. As discussed in the portion of this decision dealing with claim for an increased rating for a chronic adjustment disorder, the Veteran's functional impairment has been attributed entirely to non service-connected psychiatric diagnoses. See September 2014 and November 2017 VA Psychological Examinations. Moreover, there are no other service-connected disabilities or factors to consider in connection with his TDIU claim. To the extent that the Veteran is limited by his service-connected disability, any such limitation is found to be contemplated in, and is being adequately compensated by, the current disability rating assigned for his service-connected disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that a disability rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment). Finally, the Board observes that the Veteran's chronic adjustment disorder has not been found to present such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Again, his functional impairment has been attributed to non service-connected psychiatric diagnoses. Accordingly, for the reasons set forth above, entitlement to a TDIU has not been established on either a schedular or extraschedular basis, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 4.16 (b). Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.