Citation Nr: 22008131 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 20-04 912 DATE: February 11, 2022 ORDER Entitlement to an initial disability rating of 70 percent for a chronic adjustment disorder with mixed anxiety and depressed mood is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. The Veteran's chronic adjustment disorder with mixed anxiety and depressed mood manifest at worst in occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgement, thinking, and/or mood; the probative evidence of record does not establish total occupational and social impairment. 2. The Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent for chronic adjustment disorder with mixed anxiety and depressed mood have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440 (2021). 2. A TDIU due to the Veteran's service-connected disabilities is warranted. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from December 1961 to September 1964. In October 2021, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing is of record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was raised by the record or asserted by the Veteran. Accordingly, the TDIU claim is before the Board as a component of his claim for an increased evaluation. Id. 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). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a disability rating in excess of 50 percent for chronic adjustment disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran claims entitlement to an initial disability rating in excess of 50 percent for chronic adjustment disorder with mixed anxiety and depressed mood. The Veteran's PTSD is rated in accordance with Diagnostic Code 9440. 38 C.F.R. § 4.130. Under Diagnostic Code 9440, 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 per 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 where 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; 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. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102 (2018); Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, all of the Veteran's psychiatric symptoms will be considered when the Board rates this claim. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve 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). 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, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran's chronic adjustment disorder was initially evaluated in September 2014. At evaluation the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood. The Veteran showed symptoms of depressed mood, anxiety and flattened affect. At the examination, he was alert and oriented, demonstrated good insight and judgement, and no evidence of psychotic thinking. He was competent to manage his financial affairs. The examiner concluded that the Veteran's adjustment disorder manifests in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks during times of significant stress. Following a VA Mental Disorders examination in November 2019, the examiner concluded that the Veteran's chronic adjustment disorder manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgement, thinking, and/or mood. This is contemplated by the 70 percent criteria. The Veteran was diagnosed with unspecified depressive disorder and unspecified anxiety disorder. The examiner noted that the Veteran's symptoms could not be differentiated. At examination, the Veteran showed symptoms of suspiciousness, mild memory loss, impaired judgement, and suicidal ideation. The Veteran's thought processes were coherent and goal directed with no evidence of hallucinations, delusions, or paranoia. His affect was flat, and the Veteran was oriented to time and space. The Veteran was competent to manage his own financial affairs. In a November 2021 Psychologic Impairment Questionnaire, completed by a private psychologist, the Veteran had symptoms of deficiencies in mood, work, or school; intermittent inability to perform activities of daily living, unprovoked hostility, inability to establish and maintain effective relationships, depression, neglect of personal appearance or hygiene, and difficulty adapting to stressful circumstances. The psychologist stated that he had persistent delusions or hallucinations "in the past." The psychologist also conducted a survey regarding the Veteran's impairment specifically during a workday, which will be discussed in more detail below. Regarding social impairment, she found that the following symptoms frequently interfered with the Veteran's ability to function in a competitive work environment: the ability to interact appropriately with the general public and the ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. She found that the following symptoms constantly interfered with the Veteran's ability to function in a competitive work environment: the ability to accept instructions and respond appropriately to criticism form supervisors, and the ability to get along with co-workers and peers without distracting them or exhibiting behavioral extremes. The psychologist interviewed the Veteran and provided a Psychological Evaluation Report. At the beginning of the interview, the Veteran was able to provide his phone number, address, and information for an emergency contact. He "exhibited no grossly inappropriate mannerisms or behaviors." After describing his stressors, the Veteran stated that he had times of sadness and irritability, crying spells, loss of interest in activities he once enjoyed, decreased appetite, sleep impairment, psychomotor retardation, indecisiveness, and difficulty concentrating. When asked about suicidal ideation, he denied having any. He stated that he was currently depressed. He reported having "intense anxiety episodes," during which he had palpitations, trembling, shortness of breath, and a feeling as if he were chocking or losing control. He stated that they occurred at least once or twice a week. He stated that he bathed or showered four times a week, and changing his clothes after he bathed. He stated that he needed help to bathe and dress, and stated that he was "bedridden" so he laid in bed with a urinal. The psychologist noted that the Veteran had type 2 diabetes. The Veteran stated that he had a problem with his foot and that it put a strain on his right leg and that it caused problems with his trunk, which rendered him bedridden. He was not bedridden due to his psychiatric condition. He stated that he was no longer able to drive. He sated that he did not have difficulty remembering things such as appointments or taking his medications. For recreation, he watched television, analyzed the stock market, and watched shows about cars. Regarding his social functioning, he was asked about any "substantial history or pattern of interpersonal problems, (e.g. disagreements, arguments, fights with family, friends, bosses, co-workers)," and "he reported none. He stated that crowds bothered him and that his closest relationship was with his wife. He stated his other significant interpersonal interactions were calling "a couple of guys," but he stated that they had "really bad effects of smoking." He stated that his ability to pay attention and concentrate were "good." He stated that he had difficulty completed tasks and work in a timely manner. His mental status examination related that he had "some difficulties with tasks involving attention and concentration." He also "appeared to have some deficits with memory." The psychologist concluded that based on her observations and his current level of depressive symptoms, "...it appears possible that the [Veteran] even more difficulty with attending and concentrating when he must focus for extended periods of time, when he must multi-task, or when he is especially challenged or experiencing even greater symptom severity." He reported being married to his wife for over 50 years. They have five children. At the time of the examination, he lived with his wife and two of his children. During the mental status examination, the Veteran had "fair" hygiene and grooming. He had a tense posture "seemingly due to physical discomfort/pain," and he appeared to be in his bed. His speech was normal and he had a good attitude and was cooperative with the psychologist. The psychologist stated that he did not present evidence of a formal thought disorder. His abstract thinking was "fairly good." He denied suicidal ideation. He sated that he got angry but stated, "I just control it." He denied homicidal ideation. He did not have perceptual abnormalities. He stated that "maybe ten years ago," he had hallucinations. He was fully oriented and he had "somewhat limited memory skills" and "limited concentration skills." He had "fairly good judgment and insight." The Veteran was diagnosed with major depressive disorder and panic disorder. The psychologist stated: While the examinee is generally stable, he continues to experience problematic symptoms (e.g., with intense anxiety episodes, low mood, intermittent irritability, social isolation, limited attention/concentration and memory), which appear exacerbated in times of stress/challenge. The psychologist concluded that the overall prognosis was poor, without current treatment. She stated that he had "total (100%) occupational and social impairment (precluding him from performing full-time competitive work, solely on the basis of his service-connected psychiatric impairments, given the level of severity of his symptoms at this time)." In an October 2021 Board hearing, the Veteran testified that his adjustment disorder manifests in near daily episodes of crying, isolation, discomfort with large crowds, irritability, decreased attention span and focus, aggression, and anxiety. He stated that he could be verbally aggressive. He stated that he had three friends he used to go to lunch with and he "like[d] to be around them," but he did not like crowds. He was confined to his bed due to physical disabilities and not his psychiatric disorder. He stated that he got along with his family members. He reported experiencing panic attack symptoms such as shortness of breath and palpitations about four times per week. He stated that he was able to sleep, but sometimes had difficulty staying asleep. He said, "once in a while" he had a nightmare but that it was "nothing of any significance." He stated his ability to pay attention and focus was "not good" and "very brief." The Veteran testified that he did not care if he lived or died, and that he "just as soon be dead." The Veteran's wife testified that he was very melancholy, he cried a few times a week, and had a history of aggressive behavior. The Veteran's VA treatment notes also report a persistent history of anger. In August 2021, VA treatment records note that the Veteran has had significant anger over many years. Based on the probative evidence of record, the Board finds that the Veteran's adjustment disorder manifests in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Accordingly, entitlement to a 70 percent disability rating is warranted for chronic adjustment disorder with mixed anxiety and depressed mood. A 100 percent disability evaluation is not warranted because the medical and lay evidence of record does not establish both total occupational and total social impairment during the period on appeal. The Board is granting a TDIU in this decision. Even though there is total occupational impairment, total social impairment is also required to meet the criteria for a 100 percent rating. The Veteran has demonstrated some of the types of symptoms contemplated by the 100 percent criteria: neglect of personal appearance and hygiene and intermittent inability to perform his activities of daily living. The Board is persuaded that the Veteran's difficulty with personal appearance and hygiene is due to his physical disabilities, which cause him to be confined to his bed, and it is not due to his psychiatric disability. In November 2021, the Veteran reported that he remained in bed due to a foot, leg, and trunk disability, and the Veteran testified that he was bedridden due to physical disabilities. A July 2021 VA treatment record noted that the Veteran was bedbound and used a Hoyer lift and a wheelchair, further indicating that he was bedridden due to his physical condition. The same record showed that he had an aide assist him with showers four days per week, supporting a finding that his difficulty with bathing is due to a physical disability. The Veteran's intermittent ability to perform his other activities of daily living is attributable to his psychiatric disability. Until his hearing, he consistently denied having suicidal ideation. Even though he testified that he did not care if he lived or died, the presence of this feeling does not cause total social impairment. Even if the Board were to find that his hygiene difficulties were due to his psychiatric disability, the 100 percent criteria would not be met because he does not have total social impairment. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The Veteran has maintained his marriage of over 50 years, and has solid relationships with sons and daughters. Although he does not like crowds, he has three friends that he speaks to on the phone. His psychiatric disorders clearly interfere with his personal relationships and prevent him from being able to tolerate crowds of people. However, he has maintained familiar relationships and some friendships, and therefore is not totally socially impaired. Based on the probative medical evidence of record, the Board finds that a disability rating of 70 percent, but no higher, is warranted. 2. Entitlement to TDIU Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. As the Veteran has been unemployed since 2007, the noneconomic component of "unable to secure and follow a substantially gainful occupation" must be addressed. A November 2021 private medical Psychological Evaluation Report addressed the Veteran's ability to secure or follow substantially gainful employment. Following a mental evaluation of the Veteran, the private physician concluded: Overall, his mental disorders would keep him from regulating his emotions, controlling his behavior, and/or maintaining his well-being in a work setting, and he is likely to struggle in dealing with normal pressures in a competitive work setting. The physician also noted that the Veteran "appears challenged to consistently understand, remember, and apply information." The physician stated that the Veteran struggles to learn and recall information necessary to completing work-related activities. Finally, the physician reported that the Veteran has difficulty concentrating on work activities and may struggle to use reason and judgement to make work-related decisions. The Board finds the November 2021 Psychological Evaluation Report to be thorough and well researched. The Board finds these opinions to be highly probative evidence in favor of the Veteran's claim for entitlement to a TDIU. In an October 2021 Board hearing, the Veteran testified that his chronic adjustment disorder prevented him from being able to concentrate enough to complete his work responsibilities. The Veteran also testified that his chronic adjustment disorder made it difficult for him to regulate his emotions resulting in difficulty interacting with co-workers. (Continued on the next page) Based on the probative evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's service-connected chronic adjustment disorder prevent his from being able to obtain or follow substantially gainful employment. Accordingly, entitlement to TDIU is warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.