Citation Nr: 22013598 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-22 222 DATE: March 10, 2022 ORDER Entitlement to an initial 30 percent rating for adjustment disorder with mood disorder and alcohol dependence prior to December 10, 2019, is granted. Entitlement to a rating higher than 30 percent for adjustment disorder with mood disorder and alcohol dependence from December 10, 2019, is denied. REMANDED Entitlement to an initial rating higher than 10 percent for bilateral plantar fascial fasciitis and connective tissue strain of right foot (bilateral foot disability) is remanded. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran's adjustment disorder with mood disorder and alcohol dependence was reasonably manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. From December 10, 2019, the Veteran's alcohol use disorder has manifested symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood; occupational and social impairment with reduced reliability and productivity is not demonstrated. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to an initial rating of 30 percent for adjustment disorder with mood disorder and alcohol dependence prior to December 10, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code (Code) 9440. 2. The criteria for entitlement to a rating higher than 30 percent for adjustment disorder with mood disorder and alcohol dependence from December 10, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130, Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 2004 to June 2012. These matters were last before the Board of Veterans' Appeals (Board) in January 2021 when the Board denied the claims on appeal. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR) to vacate the Board's January 2021 decision and remanded the matters for action consistent with the terms of the JMPR. The appeal returns to the Board. 1. Entitlement to an initial rating higher than 10 percent for adjustment disorder with mood disorder and alcohol dependence prior to December 10, 2019 2. Entitlement to a rating higher than 30 percent for adjustment disorder with mood disorder and alcohol dependence from December 10, 2019 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected adjustment disorder with mood disorder and alcohol dependence is rated under Code 9440, which pertains to chronic adjustment disorder. 38C.F.R. §4.130. Almost all mental health disorders (with exceptions not applicable here) are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, a 10 percent rating is assigned when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or symptoms controlled by continuous medication. A 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, or recent events). A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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 inability to establish and maintain effective relationships.) A 100 percent rating is assigned when 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not 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. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant's condition that affect his occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5). Id. at 443; see 38 C.F.R. § 4.130. VA implemented the DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on or after August 4, 2014.79 Fed. Reg. 45,093, 45, (Aug. 4. 2014). In this case, the Veteran's appeal was certified to the Board in March 2017; hence, the DSM-5 is applicable in this claim. Nonetheless, with the adoption of the DSM-5, the general rating criteria remain the same, aside from no longer assigning a Global Assessment of Functioning score. 38 C.F.R. § 4.126(d). If the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must 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; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126(b). Prior to December 10, 2019 The Veteran seeks a higher initial rating than 10 percent for his service-connected adjustment disorder with mood disorder and alcohol dependence for the period prior to December 10, 2019. The next higher 30 percent rating is warranted for the Veteran's psychiatric disorder if his symptoms demonstrate 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). Resolving all reasonable doubt in the Veteran's favor, the record supports granting an initial rating of 30 percent for the Veteran's service-connected adjustment disorder with mood disorder and alcohol dependence for the period prior to December 10, 2019. In reviewing this matter, the Board has found that during the stated period, although the Veteran generally functioned satisfactorily with routine behavior, self-care and normal conversation, there was an occasional decrease in his ability to work efficiently and intermittent periods of inability to perform some occupational tasks due to his psychiatric symptoms. While some of the Veteran's symptoms during this period approximates the criteria for a 30 percent rating, a rating higher than 30 percent is not met nor approximated. In this case, the Veteran's psychiatric symptoms prior to December 10, 2019, are described in a September 2013 VA mental disorders examination report. In that report, the examiner explains that the Veteran's symptoms developed as a response to stressors, which include marital problems and his grandfather's suicide that occurred during the Veteran's second deployment. The severity of the Veteran's symptoms improved with treatment and at the time of the examination were minimal or mild with no reported disruptions in psychosocial functioning. The Veteran related having two close friends from childhood whom he sees regularly. He and his friends go "four wheeling", have some drinks and sometimes sit around and talk for hours; when they feel like it, they work on vehicles. He also maintains occasional contact with some of the other men from his unit. He stated he keeps in contact with some of them via Facebook, and they plan to get back together when they return from Afghanistan. At the time of the examination, he reported working part-time with a contractor that does decorative concrete. He also reported that he was recently hired as a wire technician for a communications company and is looking forward to going back to work and eventually starting school. When he is not working, he watches movies and rides his motorcycle. In addition, he has gone out on dates. On mental status examination, the Veteran presented casually dressed, with adequate hygiene. His speech was a regular rate and rhythm and non-pressured. His mood was reported as "fine". He stated he was a little stressed because his "GPS got [him] lost". His affect was appropriately expressive. His short-and long-term memory for history was grossly intact. His thought processes were logical, linear, and goal directed. He denied suicidal or homicidal ideation, plan, or intent. His insight and judgment were adequate. He denied any current alcohol or drug use prior to the examination. The examiner noted that in addition to the Veteran's physically demanding part-time work, he also engages in yard work and sporadic weight-lifting. The examiner summarized the Veteran's level of occupational and social impairment as mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner further noted that the estimation of symptom severity and impairment level is related solely to the Veteran's diagnosis of adjustment disorder with depressed mood. His reported significant decreased in his alcohol consumption since beginning mental health treatment and any mild or transient difficulties in daily functioning can be attributed to adjustment disorder rather than alcohol dependence. The examiner diagnosed adjustment disorder with depressed mood and alcohol dependence, in partial remission. In a July 2013 VA mental health triage note, the Veteran denied having suicide ideations but commented that he "thought about it" and his safeguard is that he "don't want to go to hell." Also, in July 2013 the Veteran was referred by his VA primary care provider to VA mental health clinic for an initial mental health evaluation. He was referred for depression, anger issues and alcohol use. He stated he had been feeling increasingly more depressed over the past 6 months. His symptoms at that time included depressed mood, sadness, crying spells, irritability, feeling hopeless and intermittent, passive suicidal ideation with no intent or plan to harm himself. In addition, he was referred for a VA mental health initial evaluation in July 2014. The reason for the referral was that he had difficulty coping with recent stressors. He related that his ex-wife's oldest daughter accused him of abusing her and now he has withdrawn socially. He stated he will not go near his current girlfriend's children now. He was having some suicidal thoughts about a week after he was notified of the accusation and did cut himself on his left wrist while he was drinking. He stated, "I was just watching myself cut my arm, thinking maybe I'll get lucky and go too deep on accident." He was also not able to eat or sleep well right after the accusation. In January 2015 the Veteran presented at a VA outpatient clinic for follow-up of complaints of depression. It was noted that he had been on Wellbutrin for more than one year. He reported he has had intermittent thoughts of suicide since he was accused of child abuse in 2014; he was arrested, spent 9 days in jail and had a trial date scheduled in May 2015. He stated he "planned several different ways; as many ways as you can imaging; he has not taken any action towards these vague thoughts[.]" The medical provider noted that the Veteran had no history of suicide attempts. The very next day, January 13, 2015, a VA medical provider returned the Veteran's call. He denied suicidal and homicidal ideations. The Veteran did not report to a VA mental disorders examination scheduled in April 2015. In May 2015, the Veteran was seen at a VA psychiatry outpatient clinic for medication follow-up and assessment. He reported that the medication he takes has helped to take the edge off his anxiety, and he is coping better with stress. He reduced his medication for depression to one pill a day. He is sleeping well, but also working long hours and is exhausted, which at times interferes with sleep. He drinks about 1to 2 beers a night. He has family support. On examination, the Veteran was cooperative, interactive, alert, and oriented times 4. He was well-groomed and dressed appropriately for the weather. His speech was with regular rate, rhythm and volume. His mood was slightly dysphoric, and his affect was blunted. His memory was grossly intact; his thoughts were logical and goal oriented. He denied suicidal or homicidal ideation, plans, or intent. Judgment and insight related to treatment were fair. He denied auditory or visual hallucinations. The diagnoses were adjustment disorder with depressed mood, alcohol abuse, and legal issues. Based on the foregoing, the Board finds that the criteria for a rating higher than 30 percent prior to December 10, 2019, have not been satisfied for the Veteran's adjustment disorder with mood disorder and alcohol dependence. In reaching this determination, the Board is mindful of the parties' October 2021 Joint Motion, which discussed how the January 2021 Board decision failed to consider and discuss relevant evidence regarding suicidal ideation, especially in light of the Court's holding in Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, in Bankhead, the Court held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). Under the unique facts of Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. Bankhead, 29 Vet. App. at 19-23. In this case, VA treatment records show that the Veteran has otherwise denied suicidal ideation throughout the appeal period with the exception of suicide ideation reported in July 2013, July 2014 and January 2015. In July 2013 the Veteran denied having suicidal ideation but related that he thought about it. Later that same month upon referral for mental health evaluation, his symptoms included passive suicidal ideation with no intent or plan to harm himself. He also reported suicidal ideation in July 2014 after he received notification of an accusation of abuse and he cut himself on his left wrist while he was drinking. Notwithstanding reporting having suicidal ideation and cutting himself, during the July 2014 mental health evaluation, the Veteran provided a negative response when asked if he was having thoughts about taking his life, and/or a plan to take his life. Moreover, this 2014 incident was mentioned in January 2015 when the Veteran reported having intermittent thoughts of suicide since he was accused of child abuse in 2014. He stated he had planned several different ways but had not taken any action towards the vague thoughts. The report also noted there was no history of suicide attempt. Notably, the very next day, on a call with a VA medical provider, the Veteran denied having suicidal and homicidal ideations. Based on these facts, the instances of suicidal ideation noted do not more nearly approximate occupational and social impairment with deficiencies in most areas, but rather reflect a lesser degree of impairment that is adequately contemplated by the 30 percent rating currently assigned for the period prior to December 10, 2019. While a VA examiner in September 2013 related that the Veteran's level of occupational and social impairment is due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication, the Board has reasonably considered the impact of the Veteran's symptoms as a whole, including the reports of some suicidal thoughts, and finds that symptoms described by the Veteran during the September 2013 VA examination and the May 2015 VA psychiatry outpatient clinic visit more nearly approximate a 30 percent rating for the stated period. A higher rating was not met or approximated prior to December 10, 2019, because there was no demonstration of occupational and social impairment with reduced reliability and productivity due to his psychiatric symptoms. Thus, in considering the impact of the Veteran's symptoms as a whole, including the reports of some suicidal thoughts, the evidence in total does not demonstrate that such ideation resulted in approximate occupational and social impairment with reduced reliability and productivity due to his psychiatric symptoms, but rather reflects a lesser degree of impairment. Resolving reasonable doubt in the Veteran's favor, for the period prior to December 10, 2019, his service-connected adjustment disorder with mood disorder and alcohol dependence more nearly approximates occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational task for a 30 percent rating, but no higher. From December 10, 2019 The Veteran seeks a rating higher than 30 percent for his service-connected adjustment disorder with mood disorder and alcohol dependence for the period from December 10, 2019. To warrant the next higher 50 percent rating the Veteran's psychiatric disorder must be manifest by symptoms that produce occupational and social impairment with reduced reliability and productivity. On December 2019 VA-contract mental disorders examination, the Veteran reported having mood swings; he stated that his mood goes "up and down," and he has low motivation and is easily irritated. He has been consuming large amounts of alcohol since his fiancée left two months ago but stated that he hopes to get back on a routine now that he is working again. When he is not working, he gets up, eats, and pours a drink. He related that he was told that he has nightmares regularly, but he does not remember any. He did report having "on and off" sleep issues. He reported that he was married 212 years before the marriage ended. He stated that when he came back from deployment, he was hard to get along with, and he would turn little things into big fights. He stated that he always gets along well with peers; he denied any trouble socially or withdrawal from activities of enjoyment. He moved to another state last year and did not know people outside of work; he has a small group of friends he talks to. He denied any occupational trouble. He stated he always did his job well. He likes his current job "a lot," but has been out for a month receiving worker's compensation for a broken finger. On mental status and behavioral observation, the examiner noted the Veteran was 15 minutes late for the session. He demonstrated adequate hygiene and personal grooming. He engaged with cooperation and did not demonstrate any impairment in communication. He did not demonstrate any overt symptoms of emotional distress. The Veteran appeared fully oriented and appeared to be a reliable historian. He related that he went to VA once, "maybe because of depression?" He was given medication and provided counseling that he states was not helpful. He denied any psychiatric hospitalization and denied any current medications. He stated his depression is "on and off." He stated that years ago he cut himself a couple of times due to depression and went to VA to get stitches for the cuts and lied to them about it. He has not "cut" in many years. He denied current suicidal or homicidal ideations. He reported symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The examiner indicated in the examination report that the Veteran did not have more than one mental disorder diagnosed. The diagnosis was alcohol use disorder; symptoms of the diagnosis were depressed mood, chronic sleep impairment, and disturbances of motivation and mood. The examiner noted that the Veteran no longer met the criteria for adjustment disorder, as the previous stressors had resolved. He currently meets the criteria for alcohol use disorder, which appears to be impacting his mood, sleep, and motivation. Although his alcohol abuse has increased with his fiancée moving away, the Veteran denied any significant anxiety or depression out of the context for that situation. The examiner noted that the new diagnosis is a completely new entity that has developed since the last examination. The Veteran's alcohol dependence was reported to be associated to his adjustment disorder in the past evaluation. Although the stressors resolved, the Veteran continued drinking in excess despite knowing the negative consequences for his life. The examiner also found that a mental disorder had been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. Moreover, the Veteran stated that he has returned to work, and his mood is much better because of it. He denied feeling any need for psychotherapy or psychotropic medication. He stated that his plan is to reduce the amount of alcohol he consumes and get into a "routine," but currently he is scattered with financial issues, working, and going to school. Based on the foregoing, the Board finds the criteria for a rating higher than 30 percent from December 10, 2019, have not been satisfied for the Veteran's adjustment disorder with mood disorder and alcohol dependence. Initially the Board notes that VA treatment records are negative for any reports of suicidal ideation by the Veteran. On December 2019 VA examination the Veteran's diagnosis was alcohol use disorder with symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. Findings from the examination indicate that the Veteran's reported symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. The examiner determined the Veteran no longer met the criteria for adjustment disorder as the previous stressors had resolved. He currently meets the criteria for alcohol use disorder, which was associated with his adjustment disorder in his past evaluation. The changed diagnosis has impacted the Veteran's mood, sleep, and motivation. There is no evidence that indicates that the Veteran's diagnosed alcohol use disorder is manifested with symptoms productive of occupational and social impairment with reduced reliability and productivity to warrant the next higher 50 percent rating for the period from December 10, 2019. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, that doctrine is not applicable where, as here, there is not an approximate balance of positive and negative evidence, and the evidence is persuasively against a rating higher than 30 percent from December 10, 2019, for the Veteran's service-connected adjustment disorder with mood disorder and alcohol dependence. See 38 U.S.C. § 5107(b); see also 38 C.F.R. § 3.102. Other Considerations Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a total disability rating based on individual unemployability is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the record. In this case, the issue of unemployability is not raised by the record. It appears the Veteran has been employed throughout the pendency of this appeal. During the December 2019 VA-contract mental disorders examination, he reported working in electrical maintenance for a year and quit for a pay increase at another job, which he likes. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). REASONS FOR REMAND Entitlement to an initial rating higher than 10 percent for bilateral foot disability The October 2021 JMPR noted that the Board failed to provide an adequate statement of reasons and bases with respect to the adequacy of the December 2019 VA-contract examination. Specifically, the examiner found that the Veteran did not have any foot conditions other than plantar fasciitis and connective tissue strain and noted he did not have arthritis of his feet. The evidence of record show the Veteran has other foot disorders. A September 2013 foot x-ray shows he had early osteoarthritic changes, which the examiner did not discuss in the examination report. Further, a December 2014 VA treatment record notes a diagnoses of pes planus and hallux limitus, which the examiner also did not mention in the examination report. As such, the Board finds the December 2019 VA-contract examiner did not render an adequate foot examination. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records relevant to the Veteran's service-connected bilateral foot disability from September 2018 to the present. 2. Schedule the Veteran for a VA examination addressing the current severity of his bilateral foot disability. The claims file must be reviewed by the examiner. The most up-to-date Disability Benefits Questionnaire should be utilized. All necessary tests should be performed, and all findings must be reported in detail. The examiner is asked to identify all foot disorders present during the appeal period, to include those noted in VA treatment records, namely osteoarthritic changes, hallux limitus, and pes planus; and to discuss the effect those foot disorders have on the Veteran's service-connected bilateral plantar fascial and right foot connective tissue strain disabilities. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.