ADJUSTMENT DISORDER WITH MIXED ANXIETY AND DEPRESSED MOOD

S.C. KREMBS · 2026 · Case ID: A26040988

GRANTED

Summary

The veteran, who served from December 2019 to December 2023, appeals the denial of service connection for obstructive sleep apnea (OSA) and seeks an increased rating for his acquired psychiatric disorder. The veteran initially claimed service connection for an acquired psychiatric disorder and OSA in August 2023. Following several rating decisions and appeals, service connection for the acquired psychiatric disorder was granted and increased, ultimately reaching a 50 percent rating. The Board reviewed the veteran's reported symptoms, including suicidal ideation, memory issues, loss of motivation, social withdrawal, and poor hygiene, finding they met the criteria for a 70 percent rating for the acquired psychiatric disorder, effective December 3, 2023. For OSA, the veteran reported snoring and breathing abnormalities, and a sleep study recommended PAP devices. While initial examinations noted mild OSA and potential CPAP use, the Board ultimately granted a 50 percent rating for OSA, effective December 3, 2023, based on the veteran's testimony, the possibility of CPAP treatment, and the request for an alternative breathing device, resolving doubt in the veteran's favor. The Board found the evidence did not support a 100 percent rating for either condition.

Rationale

Symptoms meet criteria for 70% rating; Resolving doubt in veteran's favor; Occupational and social impairment with deficiencies in most areas

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250512-543017

Full Decision Text

Citation Nr: A26040988
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250512-543017
DATE: April 30, 2026

ORDER

Effective December 3, 2023, an increased initial rating of 70 percent but no higher for adjustment disorder with mixed anxiety and depressed mood to include bruxism (acquired psychiatric disorder) is granted.

Effective December 3, 2023, an increased initial rating of 50 percent but no higher for obstructive sleep disorder (OSA) is granted.

FINDINGS OF FACT

1. The Veteran filed a new August 2023 VA Form 21-526EZ Fully Developed Claim (Compensation) seeking service connection for an acquired psychiatric disorder and OSA.

2. The Veteran separated from service on December 2, 2023.

3. The August 2023 claim for service connection of OSA was adjudicated in a January 2024 rating decision that denied service connection was warranted.

4. The August 2023 claim for service connection for an acquired psychiatric disorder was adjudicated in a February 2024 rating decision that granted service connection with a 30 percent disability rating effective December 3, 2023, one day after the Veteran separated from service.

5. The Veteran filed a March 27, 2024 supplemental claim appealing the January and February 2024 rating decisions.

6. The March 2024 supplemental claim seeking an increased initial rating for an acquired psychiatric disability was adjudicated in a June 2024 rating decision, which granted a 50 percent rating effective March 27, 2024, the date the supplemental claim was filed.

7. The March 2024 supplemental claim seeking service connection for OSA was adjudicated in a June 2024 rating decision, which denied service connection.

8. The Veteran filed an August 2024 request for higher level review seeking an increased initial rating for an acquired psychiatric disorder.

9. The Veteran filed an August 2024 supplemental claim seeking service connection for OSA.

10. The August 2024 request for higher level review seeking an increased initial rating for an acquired psychiatric disorder was adjudicated in a November 2024 rating decision which denied an increased rating was warranted.

11. The August 2024 supplemental claim seeking service connection for OSA was adjudicated in a December 2024 rating decision which granted service connection with a 30 percent rating effective December 3, 2023.

12. In December 2024 the Veteran sought a higher level review of the December 2024 rating decision which granted service connection for OSA with a 30 percent rating effective December 3, 2023.

13. The December 2024 request for higher level review of the 2024 rating decision which granted service connection for OSA with a 30 percent rating effective December 3, 2023 was adjudicated in an April 2024 rating decision which granted an increased rating of 50 percent, effective July 2, 2024, the date on which the entitlement to an increased rating purportedly arose.

14. The Veteran filed a May 2025 Notice of Disagreement with the November 2024 and April 2024 rating decisions.

15. The Veteran continuously pursed an initial increased rating for an acquired psychiatric disorder and OSA from the time he filed the August 2023 new claim.

16. From December 3, 2023, the Veteran has acquired psychiatric disorder symptoms which are productive of occupational and social impairment, with deficiencies in most areas. The Veteran's symptomatology does not result in total occupational and social impairment to warrant a 100 percent rating.

17. From December 3, 2023, the Veteran's service connected OSA requires the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. The Veteran's symptomology does not result in chronic respiratory failure with carbon dioxide retention, or cor pulmonale, or require a tracheostomy.

CONCLUSIONS OF LAW

1. Effective December 3, 2023 the criteria for an increased initial rating of 70 percent but no higher for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. Effective December 3, 2023 the criteria for an increased initial rating of 50 percent but no higher for OSA are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97
3 the criteria for an increased initial rating of 70 percent but no higher for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411.

2. Effective December 3, 2023 the criteria for an increased initial rating of 50 percent but no higher for OSA are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6847.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from December 2019 to December 2023.

The rating decisions on appeal were issued in November 2024 and April 2025 and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

By way of history, the Veteran filed a new August 2023 claim seeking service connection, as relevant here, for an acquired psychiatric disorder and OSA. In January 2024, the agency of original jurisdiction (AOJ) issued a rating decision deferring a decision on the acquired psychiatric disorder and denying the OSA claim. Later in January 2024, the AOJ again deferred a decision on the acquired psychiatric disorder claim.

In February 2024, the AOJ granted service connection for an acquired psychiatric disorder with a 30 percent disability rating effective December 3, 2023, the day after the Veteran separated from service. In March 2024, the Veteran filed a new claim seeking service connection for bruxism as secondarily connected to service due to the acquired psychiatric disorder. Also in March 2024, the Veteran filed a supplemental claim appealing both the January 2024 and February 2024 rating decisions. In June 2024, the AOJ issued a rating decision granting an increased rating from 30 percent to 50 percent for an acquired psychiatric disorder from March 27, 2024. In the same decision, the AOJ found that no new and relevant evidence was submitted as regards the OSA claim and denied service connection for it again.

In August 2024 the Veteran sought higher level review, seeking an increased initial disability rating for the acquired psychiatric disorder as well as service connection for OSA. In November 2024 an informal hearing was held as regards the claim for an increased rating for the acquired psychiatric disorder.

In November 2024 the AOJ continued the 50 percent rating for the acquired psychiatric disorder. In December 2024 the AOJ granted service connection for OSA with a 30 percent rating effective December 3, 2023, the day after the Veteran separated from service. Also in December 2024 the Veteran sought higher level review of the 30 percent rating for OSA. In April 2025, the AOJ granted in increased 50 rating for OSA from July 2, 2024, the date on which the AOJ found the Veteran was prescribed with a CPAP machine.

In the May 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 November 2024 and April 2025 AOJ decisions on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decisions on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

Increased Ratings

VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. §1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

This decision will focus on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal, but the Board has considered the entire record to have a full picture of the disability. See 38C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000).

Under
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. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

Under the Appeals Modernization Act (AMA), a claim can be continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the decision was issued. If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. See 38 C.F.R. § 3.2500(c)(h).

1. An increased initial rating of 70 percent for an acquired psychiatric disorder

The Veteran is currently service connected for an acquired psychiatric disorder with a 30 percent rating from December 3, 2023 and with a 50 percent rating from March 27, 2024, the date on which the AOJ received the Veteran's supplemental claim.

The Veteran contends that his service connected acquired psychiatric disorder warrants an increased initial 70 percent rating. Specifically, the Veteran contends that his currently staged ratings are inappropriate. See August 2024 Request for Higher Level Review.

Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130 (2018). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

Under the General Formula, a 30 percent rating is warranted when 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; and mild memory loss (such as forgetting names, directions, recent events).

A 50 percent rating is warranted when 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; and difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted when 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 work-like setting); and inability to establish and maintain effective relationships.

A 100 percent rating is warranted when 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name.

Turning to the evidence of record, the Veteran began seeking mental health treatment during service. On January 12, 2023, the Veteran reported to a mental health clinician that he was considering ending his marriage, and that he was in emotional crisis. On May 16, 2023 the Veteran reported that he remembers things that happened, but gets confused over the order of events, like they are a puzzle. He also reported psychological disturbance such as "zoning out," not remembering a lot, and feeling a panic attack. Id. He expressed a "mild-moderate belief" that you cannot trust the media and that he had a loss of trust for people. Id. He felt self-blame for this belief. Id.

In addition, the Veteran reported he had lost motivation for drawing, photography and skating, which he used to enjoy doing. Id. He reported having a severe level of concern over his loss of interest and hardships with friends, family and his wife. Id. He reported that he has marital problems and that he had lost motivation to interact socially. Id. He reported that it takes him about three hours to fall asleep. Id.

The Veteran reported to an August 2023 VA examiner, in an initial PTSD examination, that he drank a six pack a day of alcohol. The examiner found that the Veteran had symptoms of anxiety, chronic sleep impairment, depressed mood, forgetting directions, forgetting names, forgetting recent events, and mild memory loss. The examiner concluded that the Veteran's overall symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Id.

However, taken together, the Board finds that the above symptoms are also productive of spatial disorientation, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships, all symptoms contemplated by the 70 percent rating under 38 C.F.R. § 4.130 (2018).

On March 27, 2024, just three months after separating from service, a VA clinician noted that the Veteran reported suicidal ideation, as evidenced by his report that he has current thoughts of engaging in suicide-related behavior and that he has thoughts of wishing that he was dead." Two months later, on May 6, 2024, the Veteran called the VA suicide hotline and was deemed at intermediate risk for suicide. In June 2024 the Veteran reported to a VA examiner that he had planned suicide but did not attempt it. He reported making little effort to take care of himself and bathe, which had a negative impact on his work life and marriage, and that he felt like he was self-sabotaging. Id. The Veteran reported that he feels like "locking himself in the house to avoid dealing with people." Id. The Veteran reported that he has trouble falling asleep and staying asleep nightly and estimated getting four to six hours of sleep per night. Id. He reported that he had reduced his showering to once every few days, often does not brush his teeth, and that he shaved his head so as not to have to deal with managing products in his hair. Id. The Veteran said the past few months have been really bad with anhedonia, fatigue, isolation, and anxiety, and that socially he struggles to maintain and start relationships, noting daily depression and isolation. Id.

In addition to the symptoms reported by the September 2023 VA examiner, the June 2024 VA examiner added the following to the Veteran's diagnosis: difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. Despite the Veteran's reporting of suicidal ideation, the examiner did not select it as a symptom on the examination report. Id.

The Board notes that in Bankhead v. Shulkin, 29 Vet. App. 10,20 (2017), the Court held that the "presence of suicidal ideation alone. . . may cause occupational and social impairment with deficiencies in most areas."

As mentioned above, if two disability evaluations are potentially applicable, 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. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Here, the Board resolves all doubt in the Veteran's favor and finds that based on the symptoms noted above, the Veteran's acquired psychiatric disorder is productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. See 38 C.F.R. 4.3, supra. As such, the Board finds that effective December 3, 2023, an increased initial rating of 70 percent for an acquired psychiatric disorder is warranted.

The Board also finds that the Veteran's disability does not nearly approximate the criteria for a 100 percent rating at any time during the appeal period. In this regard, he was consistently observed to be appropriately groomed and oriented as to place, and person with intact judgment and thought process. While the Veteran has expressed memory problems, the record is devoid of any evidence that he has memory loss for names of close relatives, his own occupation, or own name during this appeal period. Additionally, his speech was consistently noted to be clear and without problems. Further, as noted, during this appeal period, the Veteran consistently denied hallucinations and delusions. See, e.g., April 09, 2024 and May 27, 2024 VA Treatment Records; September 2023 and June 2024 VA Examination Reports. Consequently, the Board finds that the Veteran's symptomatology does not result in total occupational and social impairment to warrant a 100 percent rating for his acquired psychiatric disorder at any time during the appeal period.

2. An increased initial rating of 50 percent effective for OSA

The Veteran contends that the service connected OSA warrants an increased initial rating of 50 percent. Specifically, the Veteran contends that beginning in service, his wife woke him up from sleep, during which he was snoring and breathing oddly, and that she has noticed apnea and gasping for air. See August 2023 VA Examination Report.

Under Diagnostic Code 6847, a 30 percent rating is assigned for persistent daytime hypersomnolence. A 50 percent rating is assigned when the sleep apnea requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. A 100 percent rating is assigned for sleep apnea that causes chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy.

Turning to the medical evidence of record, the August 2023 VA examiner found that the Veteran had mild OSA, and that a treatment option may include CPAP. (emphasis added). This examiner also found that the Veteran did not have a CPAP device yet because he had not had a sleep study conducted.

An October 16, 2023 sleep study was conducted, and recommended treatment options were listed as: Positive Airway Pressure (PAP) devices such as continuous PAP (CPAP), auto-adjusting PAP (APAP), and bi-level PAP (BI -PAP).

A November 2024 VA examiner found that the Veteran is being fitted for an alternative device for his sleep apnea diagnosis, as he is intolerant of the PAP device.

Resolving all doubt in the Veteran's favor, the Board finds that his testimony, in concert with the August 2023 VA examiner's findings that it is was possible to treat the Veteran's sleep apnea with a use of a breathing assistance device such as a CPAP, as well as the Veteran's request for an alternative breathing assistance device, supports a finding that effective December 3, 2023, an increased initial rating of 50 percent for sleep apnea is warranted.

However, the criteria for a 100 percent rating for sleep apnea has not been met during the appeal period because the Veteran has not exhibited chronic respiratory failure with carbon dioxide retention or cor pulmonale or required tracheostomy. Accordingly, an initial 50 percent rating, but not higher, is warranted. 38 C.F.R. § 4.97, Diagnostic Code 6847.

In sum, the Board finds that an initial rating of 50 percent, but no higher, for obstructive sleep apnea is warranted for the entirety of the appellate period. However, to
, supports a finding that effective December 3, 2023, an increased initial rating of 50 percent for sleep apnea is warranted.

In sum, the Board finds that an initial rating of 50 percent, but no higher, for obstructive sleep apnea is warranted for the entirety of the appellate period. However, to the extent that the Veteran's claim for increased initial ratings for obstructive sleep apnea is being denied, the Board finds that the evidence is against a rating higher than that currently assigned. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

S.C. Krembs

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Jackson, Atossa K.

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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