Citation Nr: 22016505 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-36 910 DATE: March 22, 2022 ORDER An initial rating in excess of 50 percent prior to December 18, 2018, for adjustment disorder with mixed anxiety and depressed mood is denied. A 100 percent disability rating from December 18, 2018, for adjustment disorder with mixed anxiety and depressed mood is granted. FINDINGS OF FACT 1. Prior to December 18, 2018, the Veteran's adjustment disorder with mixed anxiety and depressed mood manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity. 2. From December 18, 2018, the Veteran's adjustment disorder with mixed anxiety and depressed mood manifested by symptoms resulting in total social and occupational impairment. CONCLUSIONS OF LAW 1. Prior to December 18, 2018, the criteria for a disability rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. 2. From December 18, 2018, the criteria for a disability rating of 100 percent for adjustment disorder with mixed anxiety and depressed mood have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In a November 2019 decision, the Board granted an initial 50 percent disability rating, but no higher, for service-connected adjustment disorder with mixed features of depression and anxiety. The Veteran appealed the claim to the U.S. Court of Appeals for Veterans Claims (Court). In an August 2019 Memorandum decision, the Court vacated (set aside) the Board's decision denying an initial rating in excess of 50 percent for adjustment disorder with mixed features of depression and anxiety and remanded this claim back to the Board for readjudication. Entitlement to a rating in excess of 50 percent for adjustment disorder with mixed features of depression and anxiety. The Veteran asserts that his service-connected adjustment disorder with mixed features of depression and anxiety is worse than currently rated. After a thorough review of the medical and lay evidence of record, the Board finds prior to December 18, 2018, the evidence demonstrates occupational and social impairment with reduced reliability and productivity and that from December 18, 2018, a total disability rating is warranted, as the evidence demonstrates that from that date, total social and occupational impairment resulting from adjustment disorder with mixed features of depression and anxiety. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under Diagnostic Code 9440, a 50 percent rating is warranted if 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. 38 C.F.R. § 4.130, Diagnostic Code 9440. 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9440. A 100 percent rating is assigned for total occupational and social impairment, with symptoms including, but not limited to: 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; or memory loss for names of close relatives, own occupation or own name. Prior to December 18, 2018 The Veteran's adjustment disorder with mixed with features of depression and anxiety is rated at 50 percent, effective September 11, 2015. The Board finds that a rating in excess of 50 percent prior to December 18, 2018, is not warranted. At the February 2016 mental disorder examination, the Veteran endorsed depressed mood and anxiety, some excessive worry, and motivation and sleeping problems. He reported he lived with a roommate but did not want a relationship at the time. After leaving the military, he was only able to handle one class during the semester, but during the examination, he reported he was a full-time student. His level of impairment was summarized as occupational and social impairment due to mild transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The Veteran reported that his symptoms had reduced since returning from active-duty service. He reported he was "somewhat impaired to handle stress, and to cope with negative feedback." At a March 2016 psychiatric evaluation, the Veteran denied any current psychological/ emotional difficulties, stating "life is good," and he reported a high quality of life. While he previously experienced symptoms of depression and anxiety, he indicated that these had resolved. He reported that he was attending school, enjoyed surfing, flying small planes and kite surfing. He reported that he was single and not interested in dating, stating "I just want no drama in my life right now." While he reported limited family, friend, and community support, he indicated he liked it that way and relied on his surfing hobby. At a June 2016 rehabilitation visit, the clinician remarked that there was no evidence of hallucinations or delusions and that the Veteran did not voice past or current suicidal ideation, plan, or intent. The reported he returned to school in the fall of 2015 following his military service. He reported difficulties with attention and concentration which resulted in poor grades in school. He reported that at that time he was also struggling with symptoms of PTSD/depression related to charges of sexual harassment during service. However, the Veteran reported "gaining clarity" and being able to move on from the experience. He reported establishing stable housing and that his mood had improved significantly. He reported that he expected to earn a 3.7 GPA for the semester that had just ended and denied any current cognitive or academic difficulties. In a July 2016 mental health report, the Veteran reported difficulty trusting others, depressed mood, sadness, and difficulty concentrating a few times per week. He reported dreams, unwanted thoughts and feelings of the past, and increased isolation, feeling numb and cut off from others, and avoidance of close relationships. However, the Veteran denied being distressed by avoidance of close relationships with people because it resulted in helping keep his life "free of drama" so he could focus on school and his many vigorous physical activities like kiteboarding, surfing and running. In a subsequent July 2016 social work note, the Veteran discussed being out of school for two weeks and kiteboarding every day. In an August 2016 social note follow-up visit, the Veteran was alert, positive, goal oriented and his judgment was within normal limits. Additionally, in a January 2017 social work note, the Veteran reported that he had recently returned from a trip to Mexico and reported to be doing well. He reported his housing was stable and he planned to take 18 credit hours of classes in the new semester. He reported enjoying kiteboarding and hoping to pursue a professional career in the sport. He indicated that although he enjoyed socializing in groups, but he was not interested in dating or forming close relationships due to problems with trust and "opening up" to others, associated with his stressful military experience. He denied any functional difficulties or problems independently completing activities of daily living. Additionally, he reported that he was planning a trip to either Morocco or Greece within the next few months. He denied having any outstanding needs and agreed to follow-up as appropriate. The Veteran denied having any difficulties with his schoolwork and reported doing well the previous semester and was confident in his abilities. The clinician noted the Veteran's symptoms of adjustment disorder were resolving with improved coping strategies. Upon review of the evidence of record, the Board finds that prior to December 18, 2018, the Veteran's disability was manifested by symptomatology more closely approximated by a 50 percent evaluation. The overall evidence of record indicates the Veteran was cooperative, appropriately dressed, and had normal speech, good hygiene, and fair judgment. Although the record reflects a history of depressed mood and anxiety that made it difficult to form social relationships, the record, in its totality, reveals the Veteran's psychiatric disability does not reflect an inability to establish and maintain relationships and the record from this time period reveal the Veteran's adjustment disorder as being well controlled. During this period in the appeal, the Veteran reported he was in school and performing well, traveling, had future plans to travel, was enjoying kiteboarding and was goal oriented. The available medical and lay evidence does not demonstrate the level of impairment associated with a 70 percent rating. The evidence does not show symptoms such as suicidal ideation, obsessional, illogical, obscure, or irrelevant speech, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, or an inability to establish and maintain effective relationships. The Board recognizes that the Veteran reported difficulty in establishing and maintaining effective work and social relationships, described as not being interested in dating or forming close relationships due to problems with trust and "opening up" to others. However, the Board finds this is contemplated by the 50 percent disability rating. The Board finds that the Veteran's description of not being interested in a relationship does not correspond to an inability to establish and maintain effective relationships as contemplated by the 70 percent rating criteria. Rather, the Veteran's overall reported symptoms were either contemplated by or more consistent with a 50 percent rating. In summary, prior to December 18, 2018, the severity, frequency, and/or duration of symptoms, individually or collectively, shown by the record do not more nearly reflect the type contemplated by the schedular criteria for an evaluation in excess of 50 percent for adjustment disorder with mixed with features of depression and anxiety, which requires deficiencies in most areas. From December 18, 2018 In January 2019, the Veteran submitted a Mental Disorders Disability Benefits Questionnaire and medical opinion completed by the Veteran's treating private clinician in December 2018. The December 2018 private examiner noted that the Veteran's symptoms resulted in total occupational and social impairment. At that examination, the Veteran endorsed symptoms of gross impairment in thought processes or communication and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Additionally, the Veteran endorsed symptoms of inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively and severe impairment in occupational, academic, and social functioning as well as pronounced reduction in reliability and productivity. The majority of the medical and lay evidence of record from December 18, 2018, corroborates such findings. The December 2018 private examiner who conducted and explained the results of his thorough review of the record and interview with the Veteran, explained in detail how the Veteran not only has met criteria for adjustment disorder with mixed anxiety and depressed mood. Upon review of the evidence of record, the Board finds that the Veteran is entitled to a 100 percent rating from December 18, 2018. In this regard, from December 18, 2018, it is factually ascertainable that the severity of the Veteran's disability increased such that he is considered to have total occupational and social impairment. The evidence reflects the Veteran's adjustment disorder has been manifested by depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene and gross impairment in thought processes or communication. Given the Veteran's disability picture as a whole, it is apparent that his symptoms more closely approximate those contemplated by a 100 percent rating and as such, as a higher rating is warranted for his adjustment disorder with mixed anxiety and depressed mood from December 18, 2018. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.