Citation Nr: 1335740 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-08 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a higher initial rating for a major depression (psychiatric disability), currently evaluated as 70 percent disabling. 2. Entitlement to special monthly compensation (SMC) pursuant to 38 U.S.C.A. § 1114(s). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Ozger-Pascu, Associate Counsel INTRODUCTION The Veteran had active service from March 1969 to March 1971, including service in the Republic of Vietnam. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating action of the Nashville, Tennessee, Department of Veterans' Affairs (VA) RO that granted service connection for major depression and assigned an initial 70 percent evaluation, effective November 15, 2007. The Board notes that the Veteran requested a hearing before a Veterans Law Judge (VLJ). In December 2011, the RO notified the Veteran that he was scheduled for a hearing for January 2012. The Veteran, however, failed to report. Therefore, the Board deems this request withdrawn. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Under this duty to maximize benefits, SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim. See Bradley, 22 Vet. App. 280, 294 (2008). Thus, the Board has included the issue of entitlement to SMC as reflected on the title page. FINDINGS OF FACT 1. Since November 15, 2007, the evidence shows that the Veteran's psychiatric disability has been productive of total occupational and social impairment due to symptoms such as delusions of guilt, paranoid ideation, persistent danger of hurting self or others and intermittent inability to perform activities of daily living. 2. The Veteran's psychiatric disability is currently evaluated as 100 percent disabling, effective November 15, 2007. 3. The Veteran's service-connected disabilities of diabetes mellitus, Type II, peripheral neuropathy of the right and left upper extremity, respectively, and peripheral neuropathy of the right and left lower extremity, respectively, rated as 70 percent disabling, effective March 30, 2009. CONCLUSIONS OF LAW 1. Effective November 15, 2007, the criteria for a rating of 100 percent for a psychiatric disability have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126(a), 4.130, Diagnostic Code 9434 (2013). 2. The criteria for special monthly compensation at the housebound rate, effective March 30, 2009, have been met. 38 U.S.C.A. §§ 1114(s), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.350 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants entitlement to a 100 percent rating for the Veteran's major depression, effective November 15, 2007, the effective date of service connection. In addition, the Board grants entitlement to special monthly compensation at the housebound rate under 38 U.S.C.A. § 1114(s), effective March 30, 2009. Because these determinations constitute a complete grant of the benefits sought on appeal, no discussion of VA's duty to notify and assist is necessary. The Veteran asserted in his claim for a higher rating that the symptoms of his psychiatric disability more closely approximate a rating of 100 percent rather than his current 70 percent rating because of his total occupational and social impairment manifesting through such symptoms as delusions of guilt, paranoid ideation, persistent danger of hurting self or others, and intermittent inability to perform activities of daily living. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When determining the appropriate disability evaluation to assign, the Board's "primary consideration" is the Veteran's symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Board has also considered assigning separate ratings for distinct periods of time, based on the facts. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's psychiatric disability is currently rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. According to 38 C.F.R. § 4.126(a), a mental disorder shall be evaluated "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 examination." Under DC 9434, a 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment, with deficiencies in most area, 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); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. In Mittleider v. West, 11 Vet. App. 181 (1998), the United States Court of Appeals for Veterans Claims (Court) held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Here, the Veteran's major depressive disorder has been combined with his posttraumatic stress disorder (PTSD) as the symptoms are not distinguishable. Moreover, in any event, the evidence shows that his PTSD is related to his in-service, Vietnam experiences. Therefore, Board will consider all of the Veteran's psychiatric symptoms together. Entitlement to a certain disability rating requires sufficient symptoms of the kind listed in that rating, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau at 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the U.S. Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See Id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, supra, at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Psychiatric health care providers have their own system for rating a psychiatric disability under the criteria listed above. This is the Global Assessment of Functioning (GAF) rating scale, which is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM- IV); Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing DSM-IV. The GAF score assigned does not determine the disability rating VA assigns, but it is one of the findings employed in that determination. As relevant to this case, a GAF score from 51 to 60 is determinative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). At his VA examination of May 2009, the examiner diagnosed the Veteran as having PTSD that was moderately to severely disabling that was related to his Vietnam experiences and as having major depression that caused by or the result of his service-connected diabetes mellitus. The examiner indicated that he was unable to distinguish his PTSD symptoms from his symptoms related to major depression because the symptoms are overlapping and individual assignment of symptoms would be mere speculation. At that time, the examiner determined that the Veteran had total occupational and social impairment due to his psychiatric symptoms. The examiner explained that the Veteran's prognosis is poor because he views suicide as an option and his relationship with his 8-year-old daughter is his primary reason for avoiding suicide. Once his daughter reaches adolescence and is no longer as attentive to him, however, the Veteran is likely to suffer with worsening symptoms of his PTSD and depression. Also, his mood is sad, irritable and often angry and his sleep is fragmented and unrestful. He suffers with delusions of guilt and combat flashbacks and his ongoing psychiatric treatment provides him only minimal comfort and almost no symptom relief. At times he stays in his bedroom for one or two days without leaving, feeling sad and crying often. On occasion, these episodes last for several days, prompting the Veteran's 8-year-old daughter to tell him that he needs to get up. The VA examination report is also consistent with findings and conclusions set forth in the VA outpatient treatment records as well as the lay evidence. The outpatient treatment records show that the Veteran is receiving psychiatric treatment but that he obtains only mild symptom relief and continues to suffer from considerable daily symptoms. For example, in February 2009, the Veteran presented to the VA for mental health treatment with sleeping problems, isolation more than usual, low motivation, depressive symptoms, unable to do things he normally does because of his neuropathy, unable to sign his name, tense, and with suicidal thoughts and visual hallucinations. The Veteran is currently unemployed because he left his employment of 10 years. Subsequently he opened his own restaurants but decided to close those also, even though they were successful, approximately 3 years prior to the examination. In his lay statements, the Veteran reported being depressed. He and his representative also argued that his current psychiatric symptoms warrant a rating higher than his current 70 percent rating. The Board notes that the Veteran is competent to state he is depressed. Moreover, his assertions are supported by the medical evidence of record. According to his VA examination, the Veteran's symptoms render him with total occupational impairment as evidenced by the fact that he could not maintain his employment either with an employer or as a restaurant owner. He is also totally socially impaired because the only person to whom he is emotionally connected is his 8-year-old daughter, even though he is father to 3 other children. Moreover, his long-term prognosis is poor. The Veteran is in danger of hurting himself or others because he considers suicide as an option. He only avoids suicide because of his young daughter. Additionally, he has intermittent episodes where he is unable to perform activities of daily living during those times when he stays in his bedroom for days, and even longer, feeling sad and crying often. He also suffers from sadness, irritability, anger and fragmented and unrestful sleep, delusions of guilt, visual hallucinations and combat flashbacks. For these reasons, the Board finds that throughout the appeal the evidence shows that the manifestations of the Veteran's service-connected psychiatric disability most closely approximate the criteria for a 100 percent disability rating based on the medical and lay evidence of record. Indeed, in a November 2009 rating decision, the RO established the Veteran's entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) due solely to his service-connected psychiatric disability, which is consistent with the Board's determination. Special Monthly Compensation As stated in the introduction, the Board has included the issue of entitlement to SMC in order to satisfy VA's "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Under this duty to maximize benefits, SMC benefits are to be accorded when a Veteran becomes eligible without having to file a separate claim. See Bradley, 22 Vet. App. 280, 294 (2008). Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of his service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute. Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. In this case, the Board assigns the Veteran a rating of 100 percent for his psychiatric disability, which satisfies the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Indeed, given that the RO has already granted the Veteran a TDIU solely due to his psychiatric disability, even if the psychiatric disability were not rated as 100 percent disabling, for SMC purposes this disability satisfies the requirement of a "service-connected disability rated as total." See id at 251; see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In any event, because the Veteran has a single service-connected disability rated as total, and has additional service-connected disabilities that are independently rated at 70 percent (his diabetes mellitus and his right and left upper extremity and right and left lower extremity impairment), the criteria for SMC at the housebound rate were met as of March 30, 2009. Thus, in light of the Court's decisions in Bradley and in Buie, entitlement to SMC at the housebound rate under 38 U.S.C.A. § 1114(s) is granted, effective March 30, 2009. ORDER Effective November 15, 2007, a rating of 100 percent for major depression is granted, subject to the law and regulations governing payment of monetary benefits. Effective March 30 2009, entitlement to special monthly compensation at the housebound rate under 38 U.S.C.A. § 1114(s) is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs