ADJUSTMENT DISORDER

S.C. KREMBS · 2026 · Case ID: A26037602

MIXED

Summary

The veteran, who served from July 1970 to November 1971, appeals the denial of an increased rating for tension headaches and an earlier effective date for TDIU. The Board granted an increased rating for adjustment disorder with mixed anxiety and depressed mood from 20 percent to 50 percent, finding the veteran's symptoms met the criteria for reduced reliability and productivity. For tension headaches, the Board granted a 50 percent rating from August 5, 2022, forward, based on very frequent, completely prostrating attacks impacting concentration and daily functioning, but denied a higher rating prior to that date. The Board also granted an earlier effective date of January 15, 2021, for the veteran's TDIU award, finding that by that date, his combined service-connected disabilities, including the 50 percent rated adjustment disorder and limitations from back and leg conditions, precluded him from substantially gainful employment. The Board relied on a private medical opinion from Dr. S.E. and multiple VA examinations to establish the severity of the veteran's impairments and their impact on his ability to work.

Rationale

Symptoms met criteria for 50% rating (reduced reliability/productivity); Considered frequency, severity, duration of symptoms; Denied 70% rating due to consistent family relationships and fair judgment/insight

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Diagnostic Code

8100

Docket No.

251222-617435

Full Decision Text

Citation Nr: A26037602
Decision Date: 04/22/26 Archive Date: 04/22/26

DOCKET NO. 251222-617435
DATE: April 22, 2026

ORDER

An increased disability rating of 50 percent for adjustment disorder with mixed anxiety and depressed mood (adjustment disorder) is granted.

An initial disability rating in excess of 10 percent for tension headaches is denied prior to August 5, 2022.

An initial disability rating of 50 percent for tension headaches is granted from August 5, 2022 onward.

An earlier effective date of January 15, 2021 for the award of a total disability rating based on individual unemployability (TDIU) is granted.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's adjustment disorder has been productive of occupational and social impairment with reduced reliability and productivity; it has not been shown to have caused occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.

2. Prior to August 5, 2022, the Veteran's tension headaches were most closely characterized as headaches with characteristic prostrating attacks averaging one in 2 months over the last several months.

3. From August 5, 2022 onward, the Veteran's tension headaches were most closely characterized as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability.

4. The Veteran did not have an unadjudicated claim of entitlement to TDIU prior to January 15, 2021.

5. The Veteran's TDIU claim was received on January 15, 2021 as part and parcel to an increased rating claim.

6. The Veteran's service-connected disabilities have precluded him from securing and following a substantially gainful occupation since January 15, 2021.

CONCLUSIONS OF LAW

1. The criteria for a disability rating of 50 percent for adjustment disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.130, Diagnostic Code 9440.

2. The criteria for an initial disability rating in excess of 10 percent for tension headaches are not met prior to August 5, 2022. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.27, 4.124a, Diagnostic Code 8100.

3. The criteria for an initial disability rating of 50 percent for tension headaches are met from August 5, 2022 onward. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.27, 4.124a, Diagnostic Code 8100.

4. The criteria for an earlier effective date of January 15, 2021 for the award of a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1970 to November 1971. The Agency of Original Jurisdiction (AOJ) denied the claims in March 2025 and April 2025 rating decisions.

On December 22, 2025, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), electing the Direct Review option. Based upon the selection of the Direct Review option, the Board may only consider the evidence of record as of the March 2025 and April 2025 rating decisions.

The Board finds that the effective date issue is encompassed within the increase rating issue; in other words, rating tension headaches over the appeal period includes consideration of an earlier award date for the currently assigned ratings.

Increased Rating

Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment
March 2025 and April 2025 rating decisions.

Increased Rating

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999).

1. Entitlement to a disability rating in excess of 20 percent for adjustment disorder

The Board will generally review evidence from the date of the Veteran's increased rating claim and during the one year "look back period" preceding the submission of the claim. See 38U.S.C. §5110(b); 38 C.F.R. §3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). In addition, the evaluation must be 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.

The General Rating Formula for Mental Disorders, which is set forth in 38 C.F.R. § 4.130, provides in pertinent part:

A 30 percent 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 evaluation 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 evaluation 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 work-like setting); inability to establish and maintain effective relationships.

A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as
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 work-like setting); inability to establish and maintain effective relationships.

A 100 percent evaluation 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.

Here, the Veteran is currently rated 20 percent throughout the period on appeal for adjustment disorder under 38 C.F.R. § 4.130 Diagnostic Code 9440.

A review of the evidence reveals that the Veteran's adjustment disorder is productive of occupational and social impairment, entitling him to a rating of 50 percent. 38 C.F.R. § 4.130, Diagnostic Code 9440.

In this regard, during a February 2021 Mental Disorders examination, the Veteran reported living with his wife of six years with whom he described his relationship as "good". He reported that he did not have close friends that he speaks with on a regular basis but has a good relationship with his extended family and sees them every now and then. He reported outpatient psychiatric care at Greenville VAMC, taking Ativan as needed, and retiring in 2007 after injuring his back. He denied suicidal ideations, plans, or attempts and psychiatric hospitalization. He also denied recent legal problems. The examiner noted that the Veteran reported gradually worsening symptoms and that he is easily irritable, anxious, and depressed. The examiner also noted that the Veteran reported self-isolation, difficulty initiating and maintaining sleep, and nightmares twice/night. The examiner indicated that symptoms included depressed mood; anxiety; chronic sleep impairment; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran was on time for his appointment; his mood was depressed; affect was mood congruent; thought process was logical and coherent; thought content was devoid of current auditory or visual hallucinations, bizarre or delusional beliefs, or morbid preoccupations; speech was logical, goal directed, normal in rate and tone and there were no difficulties with articulation or prosody. The examiner also observed that the Veteran was casually dressed with adequate attention to grooming; he denied homicidal and suicidal ideation; his insight and judgement were good; there was no evidence of any significant impairment in basic cognitive functioning; his behavior was appropriate; he was cooperative and pleasant; he was able to answer questions and provide appropriate verbalization; and he asked appropriate questions. The examiner indicated occupational and social impairment with reduced reliability and productivity.

In June 2024, a clinician documented that the Veteran arrived on time for his appointment, was alert and fully oriented to all spheres, and was able to correctly respond to questions related to current events (e.g., current/past presidents). He was casually dressed, well groomed, and appeared his stated age. He was awake, alert and attentive for the duration of the examination with no noted attentional fluctuations. He was courteous, cooperative, and easily engaged throughout the evaluation. His mood was depressed and anxious with congruent affect and he became tearful on occasion. Speech was normal in volume prosody and rate, speech content was negative for significant paraphasic or neologistic errors, and there was no evidence of word finding problems. Thought processes were logical and goal directed and thought content was within normal limits. His recent and remote memory were intact. There was no evidence of auditory or visual hallucinations, and he convincingly denied any suicidal and homicidal ideation, plan, and intent.

During a March 2025 Mental Disorders examination, the Veteran reported being married with two children. He reported inability to do things that he used to do, and having a harder time interacting with others, but attributed it to vision changes/vision loss. He reported not having friends but that he started going to church. He endorsed seeing VA for his mental health; taking Cymbalta, Ativan, and Trazodone; and depression and anxiety increasing with vision loss. The examiner indicated that symptoms included depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner observed that the Veteran's affect was slightly constricted, but he was cooperative and his speech was normal, linear, and goal directed. He was also alert and oriented and his insight and judgment were fair. He did not endorse suicidal ideation/homicidal ideation, or hallucinations at the time. The examiner indicated occupational and social impairment with reduced reliability and productivity.

Based upon the above, the Board finds that the weight of the evidence demonstrates that the disability due to the Veteran's adjustment disorder has been productive of occupational and social impairment with reduced productivity and reliability, entitling him to a 50 percent rating. In so finding, the Board looked to the frequency, severity, and duration of the Veteran's impairment, and not transient symptoms, to assess his disability picture. See Vazquez-Claudio, 713 F.3d at 117 (Fed. Cir. 2013).

The evidence of record does not, however, support a rating of 70 percent. The Veteran consistently reported good relationships with his family members, and the clinicians consistently documented at least fair judgment/insight and that thought processes were intact. The Veteran has also not reported 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 unproved irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; or any of the other markers of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood due to unspecified anxiety disorder, and neither have any of these symptoms been observed by examiners or treating clinicians.

In finding that a 50 percent rating is warranted, the Board finds that the Veteran's adjustment disorder has been productive of or characterized by flattened affect; panic attacks more than once a week; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. This combination of symptoms indicates that the Veteran's disability has most closely approximated the criteria for a rating that represents occupational and social impairment with reduced reliability and productivity.

In reaching the above determination, the Board considered the one year look back period. However, the Board finds that there is no medical or lay evidence of record during the one-year period preceding January 15, 2021, documenting an increase in severity of adjustment disorder.

2. Entitlement to a disability rating in excess of 10 percent prior to January 30, 2023 and in excess of 50 percent thereafter for tension headaches

The Veteran is currently in receipt of a 10 percent rating prior to January 30, 2023 and a 50 percent rating thereafter for tension headaches under Diagnostic Code 8100.

Under Diagnostic Code 8100, headaches with less frequent attacks are rated noncompensable, headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling, headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated as 30 percent disabling, and headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

In Johnson v. Wilkie, the Court of Appeals for Veterans Claims (Court) defined several terms concerning the application of Diagnostic Code 8100. 30 Vet. App. 245 (2018). Firstly, the Court defined "characteristic prostrating attacks" as "attacks that typically produce powerlessness or a lack of vitality." Id. at 252. The Court then explained that "productive of severe economic inadaptability" meant "either producing or capable of producing severe economic inadaptability." Id. at 253.

The Court then revisited Diagnostic
economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

The Court then revisited Diagnostic Code 8100 in the case of Holmes v. Wilkie. 33 Vet. App. 67 (2020). In Holmes the Court held that Diagnostic Code 8100 contemplates more than just headache symptoms and "requires that VA consider all the symptoms the veteran experiences as a result of migraine attacks, and then rate those symptoms based on the frequency, duration, severity, and economic impact of the attacks." Id. at 73 (citation omitted). The Court specified that, when assigning a disability rating under Diagnostic Code 8100, VA must consider "whatever the symptoms the veteran experiences associated with migraine attacks[.]" Id.

Here, during an April 2021 VA Headaches examination, the Veteran reported daily headaches of varying severity described as pain in his forehead and around the crown of his head. He denied any associated symptoms. Upon examination, the examiner indicated pain on both sides of the head; no non-headache symptoms associated with headaches; pain located on both sides of the head; and that pain lasted all day every day. The examiner also indicated no characteristic prostrating of migraine/non-migraine headache pain or very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability, and that the Veteran's headache condition does not impact his ability to work.

During an August 2022 VA Headaches examination, the Veteran reported frontal dull nagging headache and inability to concentrate and perform daily functioning and responsibilities. Upon examination, the examiner indicated that the Veteran experiences constant head pain, pain on both sides of the head, and pain worsening with physical activity. Non-headache symptoms associated with headaches included sensitivity to sound. Typical duration of head pain was 1-2 days and located on both sides of the head. The examiner also indicated that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain once every month; very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability; and tension headaches impact his ability to work in that he cannot concentrate when he experiences headaches and he cannot perform daily functioning responsibilities.

After a review of the evidence of record, the Board finds that prior to August 5, 2022, the Veteran's tension headaches were most closely characterized as headaches with characteristic prostrating attacks averaging one in 2 months over the last several months, entitling him to a 10 percent disability rating and no higher. The Veteran reported daily headaches of varying severity described as pain in his forehead and around the crown of his head but denied any associated symptoms. The examiner indicated that the Veteran does not experience non-headache symptoms associated with headaches and does not have characteristic prostrating of migraine/non-migraine headache pain, or very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability. The examiner also indicated that the Veteran's headache condition does not impact his ability to work.

On the other hand, the Board finds that from August 5, 2022, the Veteran's symptoms were most closely characterized as very frequent completely prostrating attacks productive of severe economic inadaptability, entitling him to a 50 percent disability, the highest rating available under the Diagnostic Code. The Veteran reported frontal dull nagging headache, inability to concentrate, and inability to perform daily functioning and responsibilities. The examiner indicated that the Veteran experiences constant head pain, pain on both sides of the head, and pain worsening with physical activity. The examiner also indicated that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain once every month; very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability; and the tension headaches impact his ability to work in that he cannot concentrate when he experiences headaches and he cannot perform daily functioning responsibilities.

Accordingly, resolving all doubt in the Veteran's favor, the Board finds that an initial disability rating in excess of 10 percent for tension headaches is denied prior to August 5, 2022 and an initial disability rating of 50 percent for
examiner indicated that the Veteran experiences constant head pain, pain on both sides of the head, and pain worsening with physical activity. The examiner also indicated that the Veteran has characteristic prostrating attacks of migraine/non-migraine headache pain once every month; very prostrating and prolonged attacks of migraines/non-migraine pain productive of severe economic inadaptability; and the tension headaches impact his ability to work in that he cannot concentrate when he experiences headaches and he cannot perform daily functioning responsibilities.

3. Entitlement to an effective date earlier than January 30, 2023 for the award of a TDIU

The Veteran is already in receipt of a TDIU effective January 30, 2023. The question before the Board is whether a TDIU is warranted prior to that date.

VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

The Veteran's combined disability rating was 70 percent or more with at least one disability ratable at 40 percent prior to January 30, 2023 (tension headaches associated with adjustment disorder rated as 10 percent disabling prior to August 5, 2022 and rated 50 percent from August 5, 2022; adjustment disorder rated as 50 percent disabling; lumbar degenerative disc disease rated as 20 percent disabling; right lower extremity radiculopathy, sciatic associated with lumbar degenerative disc disease rated as 20 percent disabling; left lower extremity radiculopathy, sciatic associated with lumbar degenerative disc disease rated as 20 percent disabling; tinnitus rated as 10 percent disabling; and bilateral hearing loss rated as noncompensable). See 38 C.F.R. § 4.16.

An award based on a claim for an increase in compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of application therefore. 38 U.S.C. § 5110(a). The effective date for an increased rating may be assigned on the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). For increased ratings claims, however, the RO may assign the earliest date when it is ascertainable that the increase occurred, provided the claim for an increased rating was received within one year of the date that the increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134-35 (1992). The effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000).

Assigning the appropriate effective date for TDIU involves determining (1) when the Veteran's claim for TDIU was received, and if possible (2) when it became factually ascertainable that the Veteran could not secure and follow gainful employment. See 38 C.F.R. §§ 3.155, 3.340, 3.400(o)(2), 4.16(a); Hazan v. Gober, 10 Vet. App. 511 (1992); Faust v. West, 13 Vet. App. 342, 356 (2000).

By way of history, the Veteran submitted a claim for service connection for headaches and a claim for an increased rating for adjustment disorder with mixed
the appropriate effective date for TDIU involves determining (1) when the Veteran's claim for TDIU was received, and if possible (2) when it became factually ascertainable that the Veteran could not secure and follow gainful employment. See 38 C.F.R. §§ 3.155, 3.340, 3.400(o)(2), 4.16(a); Hazan v. Gober, 10 Vet. App. 511 (1992); Faust v. West, 13 Vet. App. 342, 356 (2000).

By way of history, the Veteran submitted a claim for service connection for headaches and a claim for an increased rating for adjustment disorder with mixed anxiety and depressed mood via a VA 21-526EZ, Fully Developed Claim (Compensation) on January 15, 2021. The AOJ denied the claims in a July 2021 rating decision. The Veteran requested higher-level review of the July 2021 rating decision and in a July 2022 rating decision, the AOJ denied an increased rating for adjustment disorder with mixed anxiety and depressed mood and identified a duty to assist error during higher-level review for service connection for headaches. The AOJ granted service connection for tension headaches as secondary to service-connected adjustment disorder with mixed anxiety and depressed mood with an evaluation of 10 percent effective January 15, 2021 in a November 2022 rating decision. The Veteran submitted a VA Form 20-0995 Supplemental Claim Application along with a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability on January 30, 2023. The AOJ denied a disability rating in excess of 10 percent for tension headaches and entitlement to a TDIU in a May 2023 rating decision. The Veteran submitted a VA Form 20-0995 Supplemental Claim Application along with a VA Form 21-4138 Statement in Support of Claim on May 6, 2024. The AOJ granted an increase 50 percent rating for tension headaches effective January 30, 2023 and entitlement to a TDIU effective January 30, 2023 in an October 2024 rating decision. The Veteran requested higher-level review of the October 2024 rating decision, and the AOJ discovered a duty to assist error during higher-level review for tension headaches and higher-level review for a TDIU. A special review was mandated on October 23, 2024 and entitlement to a TDIU was continued, and entitlement to an earlier effective date of service connection for tension headaches was not shown due to a clear and unmistakable error; the 50 percent evaluation was continued from January 30, 2023 in a March 2025 rating decision. A special review was mandated on May 6, 2024 and the 20 percent evaluation for adjustment disorder with mixed anxiety and depressed mood was continued in an April 2025 rating decision. The Veteran submitted a timely 10182 Notice of Disagreement on December 22, 2025.

The Board finds that the Veteran's claim of entitlement to a TDIU is part and parcel to the claim for an increased rating for adjustment disorder with mixed anxiety and depressed mood received on January 15, 2021 and continuously pursued.

Turning to the question of when it became factually ascertainable that the Veteran could not secure and follow gainful employment, the term "substantially gainful employment" means "employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). In other words, it is an occupation "that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income . . . ." Faust v. West, 13 Vet. App. 342, 356 (2000).

In this regard, the record reflects that the Veteran earned a high school diploma and completed some college coursework. Following service, the Veteran reported primary employment as a Production Associate. The Veteran indicated on a VA 21-8940 Veteran's Applications for Increased Compensation Based on Unemployability that he last worked in July 2008 and became too disabled to work in July 2008.

Turning to the medical evidence of record, a February 2021 VA examiner indicated that the Veteran's bilateral hearing loss impacts his ability to work in that he has significant difficulty hearing and cannot wear hearing aids because of his anxiety. The examiner also indicated that the Veteran's tinnitus impacts his ability to work in that tinnitus seems to interfere with hearing and can keep him awake at night unless he takes medication. A February 2021 VA examiner indicated occupational and social impairment due to adjustment disorder with mixed anxiety and depressed mood was occupational and social impairment with reduced reliability and productivity and the examiner indicated that symptoms included disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. An April 2021 VA examiner indicated that the Veteran's low back disability impacts his ability to work in that he cannot carry more than 15-20 pounds and he cannot walk more than 20 minutes. A September 2022 VA examiner indicated that the Veteran's tension headaches impact his ability to work in that the Veteran cannot concentrate when he experiences headaches and he cannot perform daily functioning and responsibilities. A September 2022 VA examiner indicated that the Veteran's low back disability impacts his ability to work in that he had to leave his job at BMW due to back pain and he cannot stand, sit, or ambulate for prolonged periods of time.

The Veteran submitted an opinion from Dr. S.E. that the Veteran has been unable to maintain substantially gainful employment as a result of his service-connected disabilities since at least January 15, 2021. Dr. S.E. reasoned that the Veteran struggles with severe back and lower extremity pain and numbness that impacts his daily activities, sleep, and motivation. He also struggles with sleep issues, anxiety, panic attacks, memory loss, lack of motivation, and difficulty interacting with others due to his adjustment disorder. On January 21, 2021, the Veteran reported 9/10 back pain at its worst and increased tingling and numbness. A January 27, 2021 treatment note documents that his ENT and audiology had exhausted all options and his hearing aids did not really help his hearing. During a February 2, 2021 VA examination, the Veteran reported gradually worsening mental health symptoms including nightmares, sleeping, depression, and irritability. He further reported disturbances of motivation and mood and difficulty establishing and maintaining effective work and social relationships. During an August 5, 2022 VA examination, the Veteran reported constant pain in the lower back with right sided radiating pains down the right leg, severe flare-ups, and inability to stand, sit, or ambulate for prolonged periods of time. He further reported that he worked at BMW but had to leave due to back pain/issues. During an August 2022 VA examination, the Veteran reported inability to concentrate when he experiences a headaches and inability to perform daily functioning and responsibilities.

With respect to exertional limitations due to his service-connected disabilities, Dr. S.E. noted that the Veteran is unable to stand for 15 minutes without needing to lean on something because of his back and bilateral lower extremity sciatic nerve radiculopathy; he would only be able to walk for 15 minutes unassisted due to his back and bilateral lower extremity pain, numbness, and instability; he could only sit for 30 minutes at a time, depending on the chair, and he would be uncomfortable for a lot of the time due to back pain and stiffness, as a result, he would need to be able to alternate between sitting and standing, as well as sitting and laying down to alleviate pain, and this would impact pace and productivity. He would be unable to lift or carry more than 15 pounds regularly due to the strain the additional weight would put on his back and bilateral lower extremities.

With respect to non-exertional limitations due to his service-connected disabilities, Dr. S.E. noted that the Veteran often has difficulty concentrating and staying focused due to his constant pain; he sleeps poorly at night due to his mental health symptoms, pain, and tinnitus, further degrading his ability to maintain focus, patience, and mental acuity. He also experiences memory loss, which would impact his ability to retain information and learn new material. This would be further hindered by his issues with motivation to do anything and handle stress. His mental health disability causes hypervigilance and avoidance of people and crowds. He is also unable to form or sustain effective relationships with others. All of this would impact his ability to get along well with other in the workplace, including coworkers, supervisors, and customers, or clients. Additionally, his hearing loss and tinnitus would make working in a physical environment dangerous given his difficulty hearing and would also impair his ability to communicate with others both in person and over the phone. Finally, he has difficulty concentrating and staying awake due to medications used to treat his service-connected conditions.

Based on this evidence, Dr. S.E. concluded that due to his service-connected issues, the Veteran would be required to miss work or leave early three or more days per month due to pain and limitations from his back, bilateral lower extremities, tinnitus, bilateral hearing loss, and adjustment disorder; he would need more than one additional break per day aside from normally scheduled so he could lie down recline, stretch etc.; and for more than three days per month, he would not be able to stay focused for at least 7 hours of an 8-hour work day due to mental health symptoms, constant pain, extra need for breaks, and pain medication side effects. Specifically, Dr. S.E. concluded that the Veteran's service-connected disabilities have prevented him from meeting the demands of employment since at least January 15, 2021.

Based on the foregoing, the Board finds that an earlier effective date of January 15, 2021 is warranted for entitlement to a TDIU, as the evidence demonstrates that the Veteran's service-connected disabilities at that time precluded him from obtaining or maintaining substantially gainful employment. In making this determination, the Board has considered the Veteran's level of education and his primary employment history working as Production Associate; a position which is fast-paced and involves high-stamina and attention to detail; aspects which VA examiners and private clinicians have indicated that the Veteran has difficulty with. The Board also considered that while the Veteran earned a high school diploma and completed some college coursework, he does not have any experience in predominantly seated work and VA examiners and private clinicians have indicated that the Veteran's service-connected tension headaches impact his concentration and his service-connected low back disability impacts his ability to sit for prolonged periods, which would preclude him from even seated work. The Board therefore concludes that the limitations related to the Veteran's service-connected disabilities would not be practical in a position consistent with the Veteran's education, training, and occupational history, therefore the Veteran was prevented from securing or following a substantially gainful occupation by his service-connected disabilities effective January 15, 2021. As such, the Board finds that an earlier effective date for entitlement to a TDIU is warranted effective January 15, 2021.

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Smith-Jennings, 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.

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