Citation Nr: 20038032 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 14-22 831 DATE: June 3, 2020 ORDER An initial 100 percent rating from August 9, 2012 and continuing thereafter for an acquired psychiatric disorder, to include mood disorder not otherwise specified (NOS) and unspecified bipolar disorder is granted. An effective date of August 9, 2012 for the grant of a total disability rating based on individual unemployability (TDIU) due to service-connected acquired psychiatric disorder is granted. Special monthly compensation (SMC) based on housebound is denied. FINDINGS OF FACT 1. With resolution of the doubt in his favor, the Veteran’s acquired psychiatric disorder caused total occupational and social impairment for the entirety of the rating period on appeal. 2. With resolution of the doubt in his favor, it was factually ascertainable that the Veteran’s service-connected acquired psychiatric disorder rendered him unemployable on August 9, 2012. 3. The Veteran is not permanently housebound due to his service-connected disorders. CONCLUSIONS OF LAW 1. The criteria to establish a 100 percent initial rating for the entirety of the appellate period for an acquired psychiatric disorder have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9435 (2019). 2. The criteria to establish an effective date of August 9, 2012 for the grant of a TDIU have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.341(a), 3.400, 4.16(a) (2019). 3. The criteria to establish entitlement to SMC based on housebound have not been met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from June 1972 to April 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision of the Buffalo, New York Regional Office (RO). In May 2016, the Veteran was afforded a hearing before the undersigned Veterans Law Judge (VLJ) sitting at the RO. During the hearing, the VLJ engaged in a colloquy with the Veteran toward substantiation of the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A hearing transcript is in the record. In February 2018, the Board remanded the appeal to the RO for additional action. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2019). When there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2019). Acquired psychiatric disorder Unspecified depressive disorder is evaluated under the General Rating Formula for Mental Disorders. A 30 percent evaluation 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9435 (2019). A 50 percent evaluation 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. Id. A 70 percent evaluation 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 a work-like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if 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. Id. The U.S. Court of Appeals for the Federal Circuit has noted the “symptom-driven nature” of the General Rating Formula and that “a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, if the evidence shows that a Veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran’s service-connected psychiatric disorder is rated 30 percent disabling from August 9, 2012 to August 20, 2019 and 70 percent disabling from August 21, 2019 and continuing thereafter. The DC is 9435. In February 2013, the Veteran was afforded a VA examination and diagnosed with mood disorder NOS. The Veteran reported experiencing “rapid cycling” described as cleaning the house without eating or sleeping that resulted in depression due to poor appetite and increased irritability. The Veteran was married twice and attributed his divorce to having been “loud and volatile.” He was granted custody of his 15-year old daughter and lived in an apartment specifically for adults with psychiatric disorders. The Veteran had few friends due to his suspiciousness towards other people. The Veteran reported a previous psychiatric hospitalization due to a suicide attempt in 1992. The presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas and must be considered with other evidence. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Veteran also reported having been charged with shoplifting food because he was hungry. He consumed alcohol when under stress and reported having done so every day for three weeks approximately four months ago. The Veteran had obtained counseling once per week for the past six months. The examiner observed that the Veteran did not present with notable symptoms of depression or mania and that he appeared to have a normal mental status. The Veteran’s symptoms were depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner summarized the Veteran’s total impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In a February 2013 private treatment record, the Veteran reported experiencing endless energy without focus and interrupted sleep. The Veteran experienced irritability and memory loss but denied suicidal and homicidal ideation. The private examiner observed the Veteran as well groomed, oriented, alert and cheerful. The examiner noted excessive speech, unimpaired recent memory, good judgment, normal psychomotor activity and affect congruent to mood. In a May 2013 private treatment record, the Veteran reported experiencing impaired memory, irritability and trouble with eating. He denied experiencing suicidal and homicidal ideation. The Veteran was observed as well-groomed, appropriately dressed and having no apparent deformities. In a July 2013 VA treatment record, a routine psychiatric examination revealed normal findings. The Veteran was observed as well-nourished, having a normal appearance, organized thought process and no mood disturbance. An April 2015 private treatment record reflects that the Veteran was admitted into a psychiatric unit for several days. The Veteran reported experiencing trouble with sleep and his mental health since November 2014 and reported an incident of having awakened with a machete and a cut on his hand. The Veteran indicated that his medication was ineffective and that he was in a constant manic state. In the May 2016 Board hearing, the Veteran testified to having been hospitalized several times since discharge, withdrawn from society and had no relationships other than his daughter. The Veteran’s daughter testified that the Veteran’s medication allowed him to “minimally function” where the Veteran goes to get food and comes back. The Veteran’s daughter also testified that the Veteran would not shower when he was depressed. In August 2019, the Veteran was afforded a VA examination and diagnosed with unspecified bipolar disorder. The Veteran was divorced twice with five children and that he was only close to his daughter. The Veteran avoids social activities and only goes outside for grocery shopping and to pay bills. He sees a counselor once every three weeks and a psychiatrist once every three months. The Veteran reported experiencing depression two times per week, anxiety every day, panic attacks once per week, hypomania and sleep impairment. The Veteran was observed as casually dressed with good hygiene. His speech was normal and oriented to time, place and person. The examiner indicated that the Veteran’s symptoms were depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; impairment of short and long term memory; circumstantial, circumlocutory or stereotyped speech; speech intermittently illogical, obscure, or irrelevant; difficulty in understanding complex commands; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; impaired impulse control, such as unprovoked irritability with periods of violence; persistent danger of hurting self or others; neglect of personal appearance and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and disorientation to time or place. The VA examiner summarized the Veteran’s impairment as total occupational and social impairment. The Board will grant a 100 percent initial rating from August 9, 2012 and continuing thereafter, based on the benefit-of-the-doubt doctrine, for the Veteran’s acquired psychiatric disorder under DC 9435. The evidence reflects a gross impairment in thought process or communication, and disorientation to time or place due to the Veteran’s “rapid cycling” described as cleaning the house without eating or sleeping that results in depression due to poor appetite and increased irritability. The Veteran’s daughter testified that the Veteran’s medication allows the Veteran to “minimally function” where he goes to get food and comes back and that the Veteran does not shower when he was depressed, which reflects an intermittent inability to perform activities of daily living. Although the Veteran has denied experiencing suicidal and homicidal ideation, the evidence reflects a persistent danger of the Veteran hurting himself or others due to two psychiatric hospitalizations from a suicide attempt and an incident involving the Veteran waking up with a machete and a cut on his hand. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a 100 percent initial rating is warranted and the claim is granted. TDIU With respect to an earlier effective date, a TDIU is a form of an increased rating claim; therefore, the effective date rules for increased ratings apply. See Norris v. West, 12 Vet. App. 413, 420 (1999); Hurd v. West, 13 Vet. App. 449 (2000). The effective date shall be the later of either the date of receipt of the claim, or the date entitlement arose. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o) (2019). An effective date for a claim for increase may also be granted prior to the date of the claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of the claim. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(1), (2) (2019). Therefore, the ultimate question in determining the effective date for TDIU is when it was factually ascertainable that the service-connected disorders rendered the Veteran unemployable. In a February 2020 statement, the Veteran asserted an earlier effective date of May 21, 2018 for the grant of a TDIU due to the Veteran having filed a VA application for increased compensation based on unemployability in May 2018. Although the Veteran was granted a TDIU due to his service-connected acquired psychiatric disorder effective August 21, 2019 in the February 2020 rating decision, the claim remained pending because TDIU was granted for only part of the period on appeal. Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that the grant of a TDIU does not bifurcate the appeal and a NOD does not need to be filed to challenge the effective date assigned for the award of a TDIU). The Veteran is service connected for an acquired psychiatric disorder rated 100 percent disabling from August 9, 2012 and continuing thereafter; right knee limitation of extension rated 30 percent disabling from August 9, 2012 and continuing thereafter; right knee internal derangement rated noncompensable from April 18, 1983 to September 2, 2010 and 10 percent disabling from September 3, 2010 and continuing thereafter; and a right knee scar rated noncompensable from April 18, 1983 and continuing thereafter. In the February 2013 VA examination, the Veteran reported having been taken from work by an ambulance on three occasions due to anxiety-related symptoms. In the May 2018 VA application for increased compensation based on individual unemployability, the Veteran reported having last worked in November 2000. Social security administration (SSA) records reflect that the Veteran last worked in November 2001. The Board will grant an effective date of August 9, 2012 for the grant of a TDIU based on the benefit-of-the-doubt doctrine. The Veteran filed his claim of service connection for an acquired psychiatric disorder on August 9, 2012, and as noted above, the Veteran is rated 100 percent disabling for an acquired psychiatric disorder from August 9, 2012 and continuing thereafter. Although the Veteran contends that an earlier effective date of May 21, 2018 for the grant of TDIU was warranted due to the Veteran having submitted a VA application for increased compensation based on unemployability in May 2018, the receipt date of the Veteran’s claim of service connection for an acquired psychiatric disorder was August 9, 2012. The Veteran was granted a TDIU due solely to his service-connected acquired psychiatric disorder. The Board will resolve all reasonable doubt in favor of the Veteran. Therefore, an earlier effective for the grant of TDIU is warranted and the claim is granted. SMC based on housebound The issue of entitlement to SMC under 38 U.S.C. § 1114(s) has been raised by the record. Akles v. Derwinski, 1 Vet. App. 118 (1991) (holding that a claim for increased disability compensation may include the inferred issue of entitlement to SMC, event where the appellant has not expressly raised the issue of SMC). SMC is payable at a specified rate under 38 U.S.C. § 1114(s) when a 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 or more, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound due to a service-connected disability or disabilities. 38 C.F.R. § 3.350(i) (2019). A TDIU rating can qualify for compensation at the 38 U.S.C. § 1114(s) rate, but only if the TDIU is based on a single disability. Bradley v. Shinseki, 22 Vet. App. 280, 293 (2008). The Veteran’s TDIU is based on his service-connected acquired psychiatric disorder. However, the Veteran’s 100 percent rating for his acquired psychiatric disorder is not separate and distinct from the TDIU. As noted above, the Veteran’s other service-connected disorders include right knee limitation of extension, right knee internal derangement and right knee scar, and are not independently ratable at 60 percent or more. The Veteran is not permanently housebound due to his service-connected disorders. In the May 2016 Board hearing, the Veteran’s daughter testified that the Veteran leaves the house to get food. In the August 2019 VA examination, the Veteran reported that although he was socially isolated due to his acquired psychiatric disorder, he leaves the house for grocery shopping and to pay bills. A preponderance of the evidence is against the claim. Therefore, SMC based on housebound is not warranted and the claim is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Cohen, 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.