Citation Nr: 18131216
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-26 078
DATE:	August 31, 2018
ORDER
Entitlement to a disability rating higher than 30 for adjustment disorder with mixed anxiety/depressed mood is denied.
REMANDED
Entitlement to a disability rating higher than 10 percent for bilateral plantar fasciitis with left foot calcaneal spur is remanded.
Entitlement to service connection for obstructive sleep apnea, to include as secondary to service-connected disabilities is remanded.
Entitlement to an earlier effective date for bilateral plantar fasciitis with left foot calcaneal spur is remanded.
FINDING OF FACT
The Veteran’s adjustment disorder with mixed anxiety/depressed mood has been manifest by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 
CONCLUSION OF LAW
The criteria for a schedular rating for adjustment disorder with mixed anxiety/depressed mood in excess of 30 percent disabling have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 4.130 Diagnostic Code 9440.
REASONS AND BASES FOR FINDING AND CONCLUSION
Increased Rating
The Veteran served on active duty in the United States Army from May 2008 to July 2012.  For his service, the Veteran was awarded (among other decorations) the Army Commendation Medal.
Disability ratings are determined by comparing a Veteran’s symptomatology during the pertinent period on appeal with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  Otherwise, the lower rating will be assigned. Id.  Moreover, an appeal from the initial assignment of a disability rating, such as the appeal in this case, requires consideration of the entire time period involved, and contemplates staged ratings where warranted.
1. Entitlement to an initial disability in excess of 30 percent for adjustment disorder with mixed anxiety/depressed mood
Adjustment disorders are rated by applying the criteria in 38 C.F.R. § 4.130, Diagnostic Code 9440.  The VA Schedule rating formula for mental disorders reads in pertinent part as follows:
50 percent - 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.
70 percent - 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.
100 Percent - 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.
When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission.  38 C.F.R. § 4.126(a).  The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id.  However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment.  38 C.F.R. § 4.126 (b).
When determining the appropriate disability rating to assign, the Board of Veterans’ Appeals (Board) primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002).  Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004).  Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms; a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d at 118.
At an initial psychological evaluation with his private treatment psychiatrist in October 2014, the treatment psychiatrist found the Veteran to be cooperative, dressed normally, oriented to time place and person, and without suicidal or homicidal ideation.  The Veteran reported symptoms of anxiety, depression, and hyperarousal.  His affect was congruent, his thought process displayed no flight of ideas or circumstantial thought.  The Veteran denied auditory and visual hallucinations, and he had no paranoia or delusions.  The Veteran reported no problems with his memory.  His private examiner diagnosed him with mood disorder and anxiety disorder.  
At a January 2015 VA examination, the Veteran endorsed suffering from depressed mood, anxiety, and chronic sleep impairment.  On examination, the examiner reported that the Veteran was well groomed, presented with appropriate eye contact, was alert, oriented and had normal speech.  The Veteran was without suicidal or homicidal ideation.  The Veteran denied delusional thinking, his thought process was logical, he had no apparent attention or memory difficulties, and he had adequate insight and judgment.   The VA examiner found the Veteran’s symptoms had the functional impact of 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.
After careful review of the evidence, the Board finds that based on the preponderance of the evidence, an evaluation in excess of 30 percent disabling for an adjustment disorder is not warranted.  The Veteran’s reported symptoms do not rise to the level of those described by the 50 percent rating.  Further, the symptoms that the Veteran does have do not result in occupational and social impairment with reduced reliability and productivity.  Absent such findings, the criteria for a 50 percent rating (or even higher ratings) for the Veteran’s psychiatric disorder are not met.  
REASONS FOR REMAND
Sleep Apnea
This appeal involves consideration of the claim on both a direct and secondary basis. That is, consideration must be given to whether the Veteran’s sleep apnea was incurred in or aggravated by service and, alternatively, whether it is proximately due to or the result of a service connected disability, namely an adjustment disorder.  See 38 C.F.R. §§ 3.303, 3.310. 
The Veteran’s initial claim for sleep apnea stated that his symptoms began in service.  The Veteran further included a buddy statement from a fellow service member attesting to sleep apnea symptoms that occurred while the Veteran was in service.  The Veteran’s VA treatment records include a diagnosis of obstructive sleep apnea confirmed by a sleep study.  The Veteran also included an etiology opinion from his private treatment psychiatrist claiming the Veteran’s service connected adjustment disorder aggravates the Veteran’s sleep apnea.  At a subsequent VA examination in September 2015 for sleep apnea, the examiner was only asked to render a nexus opinion on a secondary service connection basis in connection with the Veteran’s service connected adjustment disorder.  
In light of the above, the Board finds that this case must be remanded so that the Veteran may be afforded a new VA examination to consider entitlement to service connection for sleep apnea on a direct basis and to directly address literature submitted by the Veteran in support of his secondary claim.  
Bilateral Plantar Fasciitis Increased Rating and Earlier Effective Date Claims
With regard to the Veteran’s bilateral plantar fasciitis claims, he has contended that his symptoms are more severe than reflected by the most recent VA examination conducted in June 2014.  A contemporaneous examination is warranted.
As to the effective date issue, the RO provided a Statement of the Case to the Veteran denying his claim for an increased rating, but it did not address the issue of the Veteran’s disagreement with the effective date of his initial rating.  While the actual Notice of Disagreement (NOD) form submitted by the Veteran did not clearly specify his disagreement with the effective date, the supporting statement did.  And since the Veteran filed his NOD in September 2014, prior to the March 2015 deadline requiring all expressions of dissatisfaction be submitted on a standard VA form, the Veteran’s accompanying letter expressing dissatisfaction with the effective date must be addressed in a Statement of the Case.
The matters are REMANDED for the following action:
1.  Schedule the Veteran for an appropriate VA examination to determine the nature and possible relationship to service or to other service-connected disabilities of the Veteran’s sleep apnea.
The examiner should opine whether it is at least as likely as not that the Veteran’s sleep apnea was caused by, or otherwise related to, the Veteran’s active duty service to include if it was caused OR aggravated by any of the Veteran’s service-connected disabilities.  In answering this question, the examiner must specifically address the positive aggravation opinion submitted by the Veteran and the accompanying medical literature.  
A clear and complete rationale should be provided for any opinions expressed.
2.  Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected bilateral plantar fasciitis.  
3.  Provide the Veteran with a SOC regarding the issue of entitlement to an earlier effective date for the grant of service-connected bilateral plantar fasciitis.  Advise the Veteran of the time period in which to perfect his appeal. If the appeal is perfected in a timely fashion, return the case to the Board for review as appropriate.
 
Evan M. Deichert
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Herdliska 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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