GENERAL RATING FORMULA FOR MENTAL DISORDERS

Summary

The Veteran, a veteran who served from May 1974 to November 1975, appeals the denial of a total disability evaluation based on individual unemployability (TDIU) for his psychiatric condition. The Board found that an implicit TDIU claim was reasonably raised by the evidence of unemployability in the record, despite the formal TDIU application being filed late. The Board determined that good cause existed for the late filing due to COVID-19 extensions. The primary issue was the Veteran's psychiatric impairment, specifically adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder. The Board reviewed two VA examinations: one from May 2021, which assessed mild occupational impairment and was found to be based on a flawed premise, and another from June 2023, which assessed total occupational and social impairment. The Board found the 2021 examiner improperly discounted current occupational impairment and gave questionable weight to family relationships as an indicator of social impairment. While acknowledging inconsistencies in the Veteran's work history, the Board ultimately found that the evidence, with the benefit of doubt, supported a 100-percent disability evaluation for his psychiatric condition dating back to April 8, 2021. This grant rendered the TDIU claim moot, as the Veteran achieved 100 percent disability. The Board also noted that the Veteran's tinnitus and erectile dysfunction did not independently cause unemployability or housebound status.

Rationale

Benefit of doubt applied to grant 100% evaluation; 2023 VA exam assessed total occupational and social impairment; 2021 VA exam improperly discounted current occupational impairment

Full Decision Text

Citation Nr: A26040779
Decision Date: 04/30/26	Archive Date: 04/30/26

DOCKET NO. 250411-533429
DATE: April 30, 2026

ORDER

Entitlement to an initial evaluation of 100 percent for adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder from April 8, 2021, is granted.

FINDING OF FACT

The evidence is at least in approximate balance to show that the Veteran's psychiatric disability caused total occupational and social impairment throughout the period on appeal.

CONCLUSION OF LAW

With benefit of doubt, the criteria for a 100-percent evaluation for adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, DC 9440.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1974 to November 1975. This matter is on appeal from an April 2025 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO).

In the April 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2025 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. 

The Veteran's current appeal is in response to a denial of a total disability evaluation based on individual unemployability (TDIU). See Form 10182. The Veteran's formal application for TDIU was not received until April 11, 2023. The Board finds, however, that an implicit TDIU claim was reasonably raised based on evidence of unemployability in the record at the time of his initial claim for psychiatric benefits. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see C&P Exam, May 2021. 

The Veteran's initial psychiatric rating was established by an RO decision on May 21, 2021. Again, the Veteran's application for TDIU (which was processed as a claim for a psychiatric increased rating) was not received until April 11, 2023, which is more than one year later. The Board finds, however, that good cause has been shown for the delay in appeal because the Veteran submitted a Supplemental Claim on April 11, 2023, which included a request for a COVID-19 extension under Policy Letter 20-02. That document states that if a Veteran or their  authorized representative requests an extension of a time limit associated with a required action based on the COVID-19 pandemic, the Board will grant those requests under the good cause provisions, provided the time limit would have expired, or the situation occurred, on or after March 1, 2020. Veterans were advised to request an extension for filing due to COVID-19 on their filing submission or attach the request as a separate document, noting specifically that they were requesting an extension of time allowed to take the specified action on a claim due to COVID-19 (or any related reference to COVID-19, the coronavirus, national pandemic, or similar language). Where an extension was requested after expiration of a time limit, the action required of the Veteran must be taken concurrent with, or prior to, the filing of a request for extension of the time limit. Policy Letter 20-02 further provided that the guidance contained therein expires 60 calendar days following the date the President ends the national state of emergency.

On April 10, 2023, the President signed Public Law 118-3 which terminated the national COVID-19 emergency. As such, June 9, 2023, 60 calendar days following the date the President ended the national emergency, marks the end date of VBA's temporary claims and appeals processing guidance.

As above, the Veteran's application for TDIU was received on April 11, 2023, which is before June 9, 2023. Therefore, the 60-day period after the signing of Public Law 118-3 had not yet ended. Furthermore, the Veteran's Supplemental Claim which presented the COVID-19 pandemic as good cause for his late appeal was received on the same day as his application for TDIU, which was processed as an increased rating claim
-3 which terminated the national COVID-19 emergency. As such, June 9, 2023, 60 calendar days following the date the President ended the national emergency, marks the end date of VBA's temporary claims and appeals processing guidance.

As above, the Veteran's application for TDIU was received on April 11, 2023, which is before June 9, 2023. Therefore, the 60-day period after the signing of Public Law 118-3 had not yet ended. Furthermore, the Veteran's Supplemental Claim which presented the COVID-19 pandemic as good cause for his late appeal was received on the same day as his application for TDIU, which was processed as an increased rating claim for his psychiatric disability. For those reasons, the Board finds that good cause has been shown, and the Veteran's claim was effectively appealed-despite the lateness of his application for TDIU. See 38 C.F.R. §§ 3.109(b), 21.1033(e)(1).

Because the Board is granting a 100-percent total disability evaluation for the Veteran's psychiatric disability, his claim for TDIU has become moot. The Veteran is now at 100 percent disabled back to April 8, 2021. A grant of TDIU would therefore result in no additional benefit higher than 100 percent.  Moreover, there is no reason to award TDIU on the basis of one sole disability because the Veteran is now at 100 percent for one sole disability. A grant of TDIU for only one disability would not enable the Veteran to qualify for special monthly compensation benefits based on housebound status under 38 U.S.C. § 1114(s). Upon review, the evidence does not show, and the Veteran does not assert, that either his tinnitus or erectile dysfunction acting alone has resulted in unemployability. Moreover, the record includes no evidence to suggest (and the Veteran does not assert) that his disabilities have rendered him housebound as a matter of provable fact. See H&P Primary Care, November 2023 ("goes to the gym"). 

Increased Ratings: General

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Given the nature of the present claims for higher initial evaluations, the Board has considered all evidence of severity from the effective dates for the awards of service connection. Fenderson v. West, 12?Vet. App.?119 (1999).

Where 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, as is the case here, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994).

Under 38 C.F.R. § 4.14 ("Avoidance of pyramiding"), the evaluation of the same disability under multiple Diagnostic Codes-which is known as "pyramiding"-must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate and consider all lay and medical evidence of record, to analyze the credibility and probative value of the evidence, and to provide reasons for rejecting any material evidence favorable to the claimant. See 38 U.S.C. § 7104(a); Caluza v. Brown, 7 Vet. App. 498, 506 (
. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate and consider all lay and medical evidence of record, to analyze the credibility and probative value of the evidence, and to provide reasons for rejecting any material evidence favorable to the claimant. See 38 U.S.C. § 7104(a); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and credibility, a factual determination regarding the probative value of the evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter (which includes but is not limited to equipoise), VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 778 (Fed. Cir. 2021).

Entitlement to an initial evaluation of 100 percent for adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder from April 8, 2021, is granted.

The Veteran asserts that his service-connected psychiatric disability should be evaluated at higher than its current 50 percent from April 8, 2021. Upon review of the evidence and consideration of benefit of doubt, the Board agrees that the Veteran's 100-percent evaluation (previously effective only from April 11, 2023) should be effective from April 8, 2021. 

As above, the Veteran's TDIU application from April 11, 2023, is being considered as a timely appeal for his initial psychiatric evaluation. Therefore, the current appeal stems from the initial grant of service connection. Accordingly, the period on review begins on the effective date of service connection, which is April 8, 2021. See 38 C.F.R. § U.S.C. 5110(a)(1).

The Veteran's psychiatric disability is rated under 38 C.F.R. § 4.130, DC 9411 (General Rating Formula for Mental Disorders), which provides that:

A 100-percent disability rating is warranted when a psychiatric disorder causes 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 disability rating is warranted when a psychiatric disorder causes 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 50-percent disability rating is warranted for 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.

To assess the nature and cause of the Veteran's psychiatric disability, he was afforded a VA examination in May 2021. The examiner assessed a chronic adjustment disorder with mixed anxiety and depressed mood. The examiner also assessed mild alcohol use disorder and opined that it was exacerbated by the Veteran's anxiety. For that reason, the Board is now recharacterizing the Veteran's acquired psychiatric disorder as: chronic adjustment disorder with mixed anxiety and depressed mood and alcohol
 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.

To assess the nature and cause of the Veteran's psychiatric disability, he was afforded a VA examination in May 2021. The examiner assessed a chronic adjustment disorder with mixed anxiety and depressed mood. The examiner also assessed mild alcohol use disorder and opined that it was exacerbated by the Veteran's anxiety. For that reason, the Board is now recharacterizing the Veteran's acquired psychiatric disorder as: chronic adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder. See VAOGCPREC 7-99 (June 1999) (while VA is prohibited under the provisions of 38 U.S.C. §1110 from granting direct service connection for a substance abuse disability, service connection can be awarded on a secondary basis). 

Because impairment due to alcoholism was not service connected in May 2021, the Board finds that the Veteran's psychiatric impairment was worse at the time than the RO's grant of only 50-percent would account for. See Rating Decision, May 2021. 

Regarding occupational impairment, the examiner assessed that the Veteran's "anxiety, depressed mood, and alcohol use all contribute to deficiencies in daily activities." The examiner stated, however, that "[t]here's no evidence that they impacted his work performance when he was still working." Upon review, the Veteran retired from his career in construction work around 2012. See Addendum, September 28, 2017 ("He is retired construction worker about 4-5 years ago"). One treatment note indicates that his reason for retiring from that line of work was the "develop[ment of] joint pain" (which is not service connected). Rheumatology Consult, June 16, 2017. The Veteran attempted a few less physically demanding jobs after leaving construction but appears to have been unsuccessful at all of them. See Statement in Support of Claim, April 11, 2023 ("I am not working because of my adjustment disorder with mixed anxiety and depressed mood"). 

The Board notes that the examiner's relatively mild assessment of occupational impairment is based on a flawed premise. The examiner observed that there was no record of psychiatric impairment back when the Veteran was still working. The proper inquiry, however, would be to determine whether the Veteran experienced occupational impairment at the time of the examination. Therefore, the 2021 examiner's assessment of occupational impairment carries low probative weight. 

Regarding social impairment, the Veteran referred to "a lot of friends," but noted that he did not socialize as much during COVID-19. He reported having good relationships with his fourth wife and children. The Board notes, however, that family relationships can be a poor indicator for a Veteran's ability to establish and maintain effective relationships because "the fact that they endure may have more to do with the forbearance of other [family members] than with any effort of [the Veteran]." Barnes v. O'Rourke, No. 17-1498 U.S. App. Vet. Claims LEXIS 827, at *7 (2018).

The examiner in 2021 assessed the following psychiatric symptoms: depressed mood; anxiety; panic attacks more than once per week; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; and difficulty adapting to stressful circumstances, including work or a worklike setting. 

In June 2023, the Veteran was afforded a new examination with a different psychiatric provider. The new examiner assessed total occupational and social impairment, which resulted in the RO's award of a 100-percent rating from April 11, 2023. 

According to the examiner's report, the Veteran said that he last worked two years earlier, which would be around 2021. The Board notes that this statement stands in apparent contradiction with the application for TDIU, wherein the Veteran reported last working in January 2017. The Board finds, however, that no evidence in the record shows that any employment during the previous two years lasted for a substantial period or time. 

The Board must note that the Veteran is not an entirely credible source of information about his own work history. During the examination, the Veteran reported: "I think I worked at Walmart. Yes I did. A while back." The Board acknowledges that some form of impaired memory has been assessed by the psychiatric examiners in both 2021 and 2023. 

The examiner in 2023 assessed the following psychiatric symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long-term memory
 no evidence in the record shows that any employment during the previous two years lasted for a substantial period or time. 

The Board must note that the Veteran is not an entirely credible source of information about his own work history. During the examination, the Veteran reported: "I think I worked at Walmart. Yes I did. A while back." The Board acknowledges that some form of impaired memory has been assessed by the psychiatric examiners in both 2021 and 2023. 

The examiner in 2023 assessed the following psychiatric symptoms: depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; speech intermittently illogical, obscure, irrelevant; difficulty in understanding complex commands; gross impairment in thought processes and communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships.

In April 2023, the Veteran submitted a Form 21-4138 Statement in Support of Claim, where he made the following report:

"I am not working because of my adjustment disorder with mixed anxiety and depressed mood. Working is impossible. I struggle to make professional and personal relationships. I have been fighting more with my wife []. I don't go out any more. I believe I would be better off dead at times. I struggle with panic attacks. I get them weekly. I get them when I hear the noises from the tinnitus. I feel my heart rate increase and my hands tingle when this occurs. I have to either take another medication or chug another beer. I cannot handle stressful situations. I used to work construction. It got worse and worse over the last few years. I cannot maintain effective relationships. The adjustment disorder with mixed anxiety and depressed mood impacts my ability to concentrate. This is a constant struggle."

The Board notes that the statement regarding "better off dead at times" constitutes the Veteran's only positive statement of suicidal ideation during the appeal period.

After carefully reviewing the evidence, the Board finds that throughout the rating period, benefit of doubt shows that the Veteran's symptom presentation best matches the criteria for his current 100-percent evaluation under 38 C.F.R. § 4.130. This level of impairment is characterized by total occupational and social impairment. A 100-percent award is based on symptoms of  award is based on symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; impairment of short and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; flattened affect; speech intermittently illogical, obscure, irrelevant; difficulty in understanding complex commands; gross impairment in thought processes and communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. The record also includes one mention of suicidal ideation. 

As above, the examinations from 2021 and 2023 stand in fairly stark contrast, with the 2023 examination being more severe. The Board finds, however, that the 2021 examiner improperly failed to consider evidence of current occupational impairment and that the Veteran's somewhat positive relationships with his family (at least at the time) are a questionable basis for establishing social impairment to a less than total degree. 

Importantly, the Board finds no evidence to establish a dramatic shift in the Veteran's degree of psychiatric impairment that would account for the wildly different assessments from 2021 to 2023. Therefore, the Veteran should receive benefit of doubt to support a 100-percent evaluation dating back to his initial psychiatric claim, which was received on April 8, 2021. As above, the Veteran's claim for TDIU (even on the basis of one disability alone) has now been rendered moot. 

In conclusion, the Veteran should receive a total evaluation of 100 percent from April 8, 2021, for his adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder. As discussed, the Veteran has received benefit of the doubt. See Lynch, supra.

 

 

Jenna Brant

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.D. Shoup, Associate 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. 


 been rendered moot. 

In conclusion, the Veteran should receive a total evaluation of 100 percent from April 8, 2021, for his adjustment disorder with mixed anxiety and depressed mood and alcohol use disorder. As discussed, the Veteran has received benefit of the doubt. See Lynch, supra.

 

 

Jenna Brant

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.D. Shoup, Associate 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.