Citation Nr: 22018993 Decision Date: 03/31/22 Archive Date: 03/31/22 DOCKET NO. 17-58 285 DATE: March 31, 2022 ORDER Entitlement to a disability rating greater than 70 percent for adjustment disorder with mixed anxiety and depressed mood is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to September 11, 2017, is granted. FINDINGS OF FACT 1. The Veteran's adjustment disorder with mixed anxiety and depressed mood has been manifested by occupational and social impairment with deficiencies in most areas. It has not been manifested by total occupational and social impairment. 2. Throughout the period on appeal, the Veteran has been unable to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating greater than 70 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, 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to TDIU prior to September 11, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1995 to September 1999 and from December 2001 to September 2002. He appeals an October 2016 rating decision denying granting entitlement to service connection for a psychological disorder with an initial 70 percent evaluation. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 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 is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and 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). Further, "[w]here 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." 38 C.F.R. § 4.7. 1. Entitlement to an initial disability rating greater than 70 percent for adjustment disorder with mixed anxiety and depressed mood. The Veteran seeks a higher rating for his psychological disorder than the 70 percent he currently receives. After a review of the evidence, the Board finds that a rating higher than 70 percent is not warranted. The Veteran's adjustment disorder is rated using the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130, Diagnostic Code 9440. The rating criteria provide for the following: A 100 percent rating is warranted for 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. A 70 percent evaluation 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. The Veteran underwent a VA examination in September 2016. On that occasion, he reported anxiety, depression, and anger. He noted that his anger has interfered with his relationship with his wife and children and he is concerned it could become worse. He noted that he becomes irritable and angry over "small" or "large" situations. He also endorsed feeling down most days, sad, cries occasionally, feels worthless, and sometimes feels that he needs to force himself out of bed. The examiner noted symptoms such as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, suicidal ideation, and obsessional rituals which interfere with routine activities. The Veteran reported that he enjoyed gardening and playing computer games as well as doing things with his family. The examiner found him appropriately groomed, cooperative, and oriented in all spheres with no evidence of psychosis. His thought process were logical and goal-directed. He denied any thoughts of death or any audio/visual hallucinations at the time. The Veteran was seen for a followup mental health evaluation a few days after his September 2016 VA examination. He reported feeling depressed most days for the previous few months, stating that he feels sad, crying occasionally, worthless with not currently working, guilty and hopeless at times. He stated that he feels irritable and angry often and takes this out on his wife and other individuals. He noted that his wife and mother-in-law have noticed his anger and irritability and his relationships with them are suffering. He also noted that he has also had thoughts about hurting others, with no intent or plan, as well as feels aggressive when driving. He reported that he often worries about many things, such as going back to work, his children, his health, finances, etc. He noted that when he was angry in February, he hit his youngest adopted son (age 8). CPS investigated and both his children are now temporarily living in other homes. He reported worrying about his children. He denied any current suicidal intent or plan. In March 2017, the Veteran reported that his mood has been low with fleeting thoughts of hurting himself, maybe by cutting or OD. A February 2017 medical treatment note indicated that the Veteran had burned himself twice in the past to "see how it feels." However, he adamantly denied suicidal thoughts at the time, citing his family as the protective factor. His wife and mother-in-law, who needed his help and support, would be hurt if he exhibited self-harming behavior. He enjoyed spending time with family, has his wife and mother-in-law to talk to, and a close friend. He enjoyed watching TV and doing projects around the house. A review of the remaining medical evidence does not reveal symptoms indicative of a 100 percent rating. The Veteran has not endorsed current suicidal or self-injurious behavior, he has consistently denied hallucinations or delusions, has not exhibited grossly inappropriate behavior or gross impairment in thought processes, and has maintained his ability to perform activities of daily living. Indeed, outside of representing a danger to himself a few isolated events, the evidence does not show symptoms indicative of a 100 percent rating. Based on the medical evidence, the Board finds that a 70 percent rating is warranted for the period on appeal. However, a higher 100 percent rating is not warranted at any time. To be sure, the symptoms of the Veteran's adjustment disorder clearly have a significant impact on his social and occupational functioning, particularly impaired impulse control resulting in unprovoked irritability with periods of violence. However, at no time during the period on appeal has she demonstrated other symptoms indicative of a 100 percent rating. Therefore, an initial disability rating higher than 70 percent is not warranted. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment. The Board observes that the Veteran's social and occupational functioning is indeed impacted by his psychiatric disability. However, the evidence does not indicate that a rating in excess of 70 percent is warranted. In this regard, the Veteran reports passive self-injurious ideations and depression. However, these symptoms are adequately captured by his 70 percent rating. The Board observes that he maintains a successful relationship with his wife and hobbies at home. In considering the appropriate disability ratings, the Board has also considered the assertions of the Veteran and his representative that his adjustment disorder is worse than the rating he currently receives. Specifically, he points to a tendency of violence to others. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his adjustment disorder according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's adjustment disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Therefore, based on the evidence of record, the Board determines that a 50 percent rating is warranted for the Veteran's adjustment disorder for this period. In summation, the evidence shows that the Veteran's adjustment disorder symptoms have not risen to the level of total social and occupational impairment. As such, a disability rating in excess of 70 percent is not warranted and the claim is denied. TDIU When evidence of unemployability is submitted during the course of an appeal from a rating assigned for a disability, a claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2018). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58 (2019). 2. Entitlement to TDIU prior to September 11, 2017. The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice, 22 Vet. App. 453-55. First, the Board observes that the Veteran has met the threshold requirements for entitlement to TDIU throughout the period on appeal. During this time, service connection was in effect for adjustment disorder, secondary to diabetes mellitus (DM) (70 percent); left leg, below knee amputation, secondary to DM (30 percent); diabetes mellitus (20 Percent); right lower extremity diabetic peripheral neuropathy (20 percent); surgical scars left lower extremity associated with below knee amputation (20 percent); a right thumb disability, secondary to DM (10 percent); and noncompensable ratings for erectile dysfunction, diabetic neuropathy, and additional surgical scars, all secondary to the Veteran's service-connected DM. His service-connected disabilities resulted in a total 90 percent combined rating beginning June 25, 2016, and a 100 percent combined rating beginning September 11, 2017. 38 C.F.R. § 4.25. At his September 2016 VA examination, the Veteran reported that he was currently on work compensation for a foot infection but was attempting to return to his security job. Medical treatment records from February 2016 show that the Veteran was hospitalized for a MRSA infection of the left knee with associated pain radiating throughout the body. He reported that the psychological stressors from coping with his service-connected physical disabilities had caused him to call in sick to work in the past. No further details were obtained. A month later, in October 2016, the Veteran filed a formal TDIU claim asserting that he last worked in February 2016. On his application, the Veteran admitted that he was on leave of absence from his current employer, thus still technically employed. However, the Veteran asserted that any return to work would be limited. There is no evidence of record showing employment of any kind after February 2016. The evidence further indicates that the Veteran was unable to return to work after his February 2016 leave of absence. As noted above, the Veteran has been rated at 70 percent for a psychological disorder directly attributable to physical impairments brought on by his service-connected DM. Depression related to his physical impairments has led to impulsive anger, resulting in violence toward a family member on a single occasion. The Board finds the Veteran's tendency toward violence, even if minimal, represents a danger to himself and other potential coworkers. Overall, the evidence suggests that the Veteran is unable to obtain or maintain substantially gainful employment due to the physical and mental impairment resulting from his service-connected DM and residuals. In summation, the Board finds that the Veteran has been unable to obtain or maintain substantially gainful employment due to his service-connected physical and mental disabilities. Accordingly, entitlement to TDIU is warranted throughout the period on appeal and the claim is granted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel