Citation Nr: 25006397 Decision Date: 05/12/25 Archive Date: 05/12/25 DOCKET NO. 20-08 518 DATE: May 12, 2025 ORDER Entitlement to an initial 70 percent disability rating for adjustment disorder with anxiety is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for cervical strain is remanded. Entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to service-connected cervical strain, is remanded. Entitlement to service connection for a neurological disorder of the right lower extremity, to include as secondary to service-connected lumbosacral strain, is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for adjustment disorder with anxiety 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. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from November 2014 to June 2018. During his period of service, he earned Army Commendation Medal, Army Achievement Medal, Army Good Conduct National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal, Army Service, Overseas Service Ribbon, Driver and Mechanic Badge-Mechanic, and Certificate of Achievement. The appeal was most recently before the Board in December 2023, at which time the Board granted the claim of entitlement to a 20 percent lumbosacral strain; denied the claims of entitlement to a disability rating in excess of 30 percent for adjustment disorder with anxiety; a disability rating in excess of 10 percent for cervical strain; a disability rating in excess of 20 percent for lumbosacral strain; a compensable disability rating for right wrist tendinitis surgery scar; and denied the claim of entitlement to service connection for a neurological disorder of the left upper extremity. The Board also remanded the claims of entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to service-connected cervical strain; a neurological disorder of the right lower extremity, to include as secondary to service-connected lumbosacral strain; and right side groin condition for further development. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2024, the parties filed a Joint Motion for Partial Remand (Joint Motion) vacating the part of the Board's December 2023 decision denying entitlement to initial ratings in excess of 30 percent for adjustment disorder with anxiety and in excess of 10 percent for a cervical strain and remanding the matter for actions consistent with the Joint Motion. As noted in the Joint Motion, the Board recognizes that the parties requested that the Court not disturb that portion of the Board decision that granted entitlement to a 20 percent lumbosacral strain. The Board further recognizes that the Veteran does not seek to challenge the issues denied in the Board's December 2023 decision, specifically entitlement to an initial rating in excess of 20 percent for lumbosacral strain; a compensable disability rating for right wrist tendinitis surgery scar; and entitlement to service connection for a neurological disorder of the left upper extremity. Accordingly, these issues are no longer on appeal. [The December 2024 Joint Motion noted that the Court had no jurisdiction over the portion of the Board's decision that remanded the issues of entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to service-connected cervical strain; a neurological disorder of the right lower extremity, to include as secondary to service-connected lumbosacral strain; and right side groin condition.] By a September 2024 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for iliopsoas tendinitis with femoral acetabular impingement syndrome; thus, that issue is no longer for appellate consideration. Entitlement to an increased disability rating for adjustment disorder with anxiety Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The veteran's entire history is reviewed when assigning disability ratings. See generally 38 C.F.R. § 4.1. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based upon the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). But where service connection has already 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). The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's adjustment disorder with anxiety is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9440. A 30 percent rating is rating is warranted where 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). A 50 percent rating is warranted where 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. 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; 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. A 100 percent rating is warranted where 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; memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders 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 as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." This appeal stems from the Veteran's January 2018 claim of entitlement to service connection, which he filed prior to separating from active service. Service treatment records reveal that the Veteran denied suicidal and homicidal thoughts. See STR, dated July 22, 2018, pp. 40, 52, 74, 82, 117, 137, 141, 143, 179, 183. A November 2017 post-deployment assessment also notes that the Veteran lacked subjective clinical signs of depression, to include listlessness, hopelessness, low mood, flat affect, and monotone voice. See id, p. 78. A May 2018 service treatment record reflects the Veteran offered a negative response to a self-harm assessment and suicide severity rating screen. See STR, dated July 22, 2018, p. 4. The Veteran appeared for a VA mental disorders examination in February 2018. The examiner indicated that the Veteran's level of occupational and social impairment could be best summarized as 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 medication. As to relevant mental health history, the Veteran denied using behavioral health services in the past because he was concerned about the impact on his future career in the medical field. He had become socially withdrawn, irritable, and impatient. He reported this sometimes affected him at work and stated, "I feel like I am wasting my life." He reported sleep disturbances for year and a half prior to examination, waking up 15 to 20 times a night. He was able to resume sleep. He reported feeling tired throughout the day. The Veteran endorsed symptoms of anxiety and chronic sleep impairment. At the time of examination, the examiner noted that the Veteran was logical, linear, and goal directed. He was fully oriented to person, place, time, and purpose. Appearance, speech, and affect were normal. His affect was full, and mood was euthymic. His insight, judgment, and impulse control were intact. The Veteran's eye contact was good, and sense of humor was intact. There was no evidence of obsessions or compulsions or thought disorder. There were no psychotic symptoms or suicidal ideation. No other symptoms were identified. VA treatment records document the Veteran's reports feeling depressed related to multiple orthopedic problems. The Veteran denied mania, psychosis, or substance use problems. He indicated that he would like more energy and concentration and improved sleep. He reported feeling depressed and hopeless lately. At the time of the appointment, the Veteran was cooperative, pleasant, articulate, and elaborative. He was orientation in all spheres. His mood/affect was depressed but stable, congruent, and appropriate. The Veteran denied suicidal and homicidal ideation, auditory/visual hallucinations, and delusions. His thought process was LLGD. His speech was within normal limits, though it was a bit soft in volume and he sounded depressed. The Veteran expressed having little interest or pleasure in doing things; trouble falling or staying asleep or sleeping too much; and trouble concentrating on things, such as reading the newspaper or watching television nearly every day. He expressed feeling down, depressed, or hopeless; having poor appetite or overeating; and feeling bad about yourself or that you are a failure or have let yourself or your family down more than half the days. He expressed moving or speaking so slowly that other people could have noticed or being so fidgety or restless that you have been moving around a lot more than usual several days. He indicated that these problems made it very difficult for him to do his work, take care of things at home, or get along with other people. See CAPRI, dated August 13, 2020, pp. 5-9. In August 2020 he reported experiencing ongoing pain which limited his physical activity which impacted his mood. The Veteran endorsed a depressed mood most days and stated that his energy has been up and down. His anxiety was minimal. He slept four to five hours per night on average with two awakenings during the night. The Veteran was previously started on a trial of Bupropion. He reported some improvement in motivation and interest, though he felt it had somewhat interfered with his sleep. The Veteran had discussed engaging in therapy but reported he was too busy at this time and would consider it at a later date. The Veteran denied suicidal and homicidal ideation, auditory and visual hallucinations, or acute safety concerns. He denied grandiosity, psychosis, flight of ideas, increased activity/indiscretion, pressured speech or decreased need for sleep. His interests were fair. His guilt, energy, energy, concentration, appetite/weight, and psychomotor skills were within normal limits. At the time of his appointment, the Veteran was alert, cooperative, and friendly. His affect was lively and appropriate. His mood was in neutral range and his thinking was clear and coherent. The Veteran was free of paranoid or delusional thought content. He did not endorse thoughts of hurting or killing himself or others nor was he having obsessions, compulsions, or phobias. The Veteran denied having any hallucinations, particularly any hallucinations with commanding content to hurt self or others. No impairment of orientation or memory was observed. The Veteran's insight and judgment were intact. See CAPRI, dated January 26, 2024, pp. 5-6. The Veteran appeared for a VA mental disorders examination in November 2020. The examiner indicated that the Veteran's level of occupational and social impairment could be best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, al-though generally functioning satisfactorily, with normal routine behavior, self-care and conversation. As to relevant mental health history, the Veteran reported attending limited counseling through VA and was taking medication. He endorsed symptoms of depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; and disturbances of motivation and mood. At the time of examination, the examiner noted that the Veteran presented as subdued; however, he was cooperative and participated fully in the examination. The Veteran provided a lay statement in which indicated that he was critical of others, irritable when around people for too long, and felt tired all the time. He was unable to explain himself myself well to others and felt very isolated and alone. He also had very distant relationships with his family and friends. His relationship with his spouse had deteriorated so much that it felt like they were just roommates. He felt very withdrawn from the relationship. He also found himself struggling to interact with his children. The Veteran also reported struggling with daily tasks of hygiene and self-care. He also developed compulsive habits, such as biting his fingernails and excessively picking at his face. He stated that he has had thoughts of self-harm and suicidal ideation before, but when he thinks about his children, he tries to push those thoughts out of his head. See VA Form 21-10210-Lay Witness Statement, April 11, 2025. The Veteran's spouse also provided a statement in which she described how the Veteran had withdrawn from her emotionally, stopped communicating beyond the bare minimum, and lost interest in everything he once loved. He had become distant from everyone, including their children. She stated that he avoided social situations at all costs and quickly became irritable when he had to engage. He lost friends due to his isolation and his familial relationships had deteriorated. He rarely communicated with his parents or siblings, and when he did, the communication was brief, detached, and robotic. The Veteran's spouse further indicated that their marriage had suffered immensely. See Buddy/Lay Statement, received April 11, 2025. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes that the Veteran is entitled to a 70 percent disability rating for his service-connected adjustment disorder with anxiety for the entire period on appeal. The medical and lay evidence supports a finding of occupational and social impairment that more closely approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The medical evidence also supports a finding that the Veteran's symptomology has remained consistent throughout the period on appeal. The Veteran has endorsed symptoms that include depressed mood; anxiety; chronic sleep impairment; panic attacks that occur weekly or less often; mild memory loss, such as forgetting names, directions or recent events; inability to establish and maintain effective relationships; and disturbances of motivation and mood. Thus, the Board will afford the Veteran the full benefit-of-the-doubt and find that the totality of the evidence favors the assignment of a 70 percent rating for the period on appeal. Although an increased rating of 70 percent is warranted, the evidence of record does not reflect symptoms that would meet the criteria for a 100 percent rating for any period during the pendency of the claim. Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition. There is no evidence of 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, or symptoms of similar severity. The treatment records nor examination reports of record are indicative of occupational and social impairment that approximate the criteria for a 100 percent. Rather, while the evidence of record demonstrates significant impairment in occupational and social functioning, it does not show total occupational and social impairment to warrant an increased rating of 100 percent. Occupationally, the Veteran is employed as a developer. Thus, although the Veteran's disability undoubtedly may cause occupational difficulties, she cannot be said to be totally occupationally impaired. Likewise, he is not totally socially impaired. Indeed, although the Veteran's symptoms may impact his social and familiar relationships, he remains a relationship with his spouse and children. He also reported communicating with his parents a couple times a month. Thus, although the Veteran's disability undoubtedly may cause social difficulties, he cannot be said to be totally socially impaired to warrant a 100 percent disability rating. Based on the foregoing, the Board finds that the Veteran's symptoms do not more nearly approximate both total social and total occupational impairment as required to warrant a 100 percent rating for the appellate period. See 38 C.F.R. § 4.130, Diagnostic Code 9440. Moreover, there is no indication in the medical evidence of record that the Veteran's symptomology warranted other than the currently assigned 70 percent disability rating throughout the appeal period. Assignment of staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that a 70 percent disability rating is warranted for the entire period on appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2024); see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to an increased disability rating for cervical strain The Veteran contends that his cervical strain is worse than reflected by the December 2020 examination report of record and has worsened since last evaluated. Specifically, the Veteran submitted a lay statement in April 2025 in which he described experiencing flare-ups and having to turn his whole body instead of turning his neck. See VA Form 21-10210-Lay Witness Statement, dated April 11, 2025, p. 8. Given the passage of time and the indication that the Veteran's cervical spine disability is worse than when previously rated, a new VA examination is necessary. See Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to conduct a thorough and contemporaneous examination of the Veteran in an increased rating claim); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (affording the Veteran a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). Moreover, the Veteran's representative has argued that the ameliorative effects of his medication should be considered when assessing the severity of his cervical spine disability. See Appellate Brief, received April 11, 2025. When assigning a disability rating, the Board is required to discount the ameliorative effects of medication unless such effects are explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). If the applicable Diagnostic Code specifically contemplates the effects of medication, Jones is inapplicable. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). As the rating criteria here do not contemplate the ameliorative effects of medication, the Board may not deny entitlement to higher ratings on the basis of relief provided by the use of such medication. Therefore, on remand the examiner should address any ameliorative effects of medications the Veteran uses to treat his cervical spine disability. 2. Entitlement to service connection for a neurological disorder of the right upper extremity, to include as secondary to service-connected cervical strain 3. Entitlement to service connection for a neurological disorder of the right lower extremity, to include as secondary to service-connected lumbosacral strain Following the December 2023 Board remand, the Veteran appeared for a VA peripheral nerve examination in July 2024. The examiner opined that it was less likely than not that the Veteran's claimed neurological disorders of the right upper and lower extremities were proximately due to, or the result of the Veteran's service connected cervical spine and lumbar spine disabilities, as there was no pathology to warrant a diagnosis. Unfortunately, the Board finds the opinion inadequate for adjudication purposes. Specifically, although the examiner determined there was no current diagnosis associated with any neurological disorder of the right upper or lower extremity, the examiner failed to consider and discuss the September 2020 VA examination findings which revealed diagnoses of radiculopathy of the right upper extremity (ulnar nerve) and radiculopathy of the right lower extremity (femoral nerve). See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, a remand is warranted to schedule the Veteran for a VA examination in order to obtain an addendum opinion that reconciles the foregoing findings. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations with the appropriate examiner to determine the current nature and severity of his service-connected cervical strain. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Any indicated studies should be performed. (a.) The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to his service-connected cervical strain. (b.) The examiner must further comment as to whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (c.) To comply with Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight bearing and non-weight bearing, if applicable to the joint involved. (d.) To comply with Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017), the examiner should also state whether the examination is taking place during a period of flare-up. 1. If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. 2. If the examination is NOT taking place during a flare-up, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. 3. Based on the Veteran's lay statements and the other evidence of record, the examiner must provide an opinion estimating any additional degrees of limited flexion and extension during a flare-up and after repeated use over time. 4. If the examiner cannot provide any the above range of motion estimates without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). (e.) The examiner must comment on the severity of the cervical spine disability when discounting the ameliorative effects of any medication taken to treat the symptoms. If this is not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished. 2. Obtain an addendum opinion from an appropriately qualified clinician to determine the nature and etiology of the Veteran's claimed neurological disorders of the right upper and lower extremities. A new examination should be obtained if deemed necessary by the examiner. The examiner must review pertinent documents in the Veteran's claims file. This must be noted in the examination report. (a.) The examiner must state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's neurological disorder of the right upper extremity (i) is caused by the Veteran's service-connected cervical spine disability; or (ii) is aggravated by the Veteran's service-connected cervical spine disability. 1. In providing the opinion, the examiner must specifically address and discuss the September 2020 VA examination findings which revealed a diagnosis of radiculopathy of the right upper extremity (ulnar nerve). (b.) The examiner must state whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's neurological disorder of the right lower extremity (i) is caused by the Veteran's service-connected lumbar spine disability; or (ii) is aggravated by the Veteran's service-connected lumbar spine disability. 1. In providing the opinion, the examiner must specifically address and discuss the September 2020 VA examination findings which revealed a diagnosis of radiculopathy of the right lower extremity (femoral nerve). The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. Rationale for all requested opinions shall be provided. If the examiner(s) cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner(s) shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.