Citation Nr: 21000614 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 20-15 345 DATE: January 5, 2021 ORDER New and material evidence having not been received, the claim to reopen entitlement to service connection for erectile dysfunction, for accrued benefits purposes, is denied. Entitlement to an increased rating for depressive disorder, not otherwise specified, rated as 50 percent disabling prior to August 21, 2013, and 70 percent disabling thereafter, for accrued benefits purposes, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extraschedular basis, for accrued benefits purposes, is remanded. FINDINGS OF FACT 1. An unappealed October 2008 rating decision denied service connection for erectile dysfunction. 2. The evidence received since the October 2008 rating decision does not raise a reasonable possibility of substantiating the claim for entitlement to service connection for erectile dysfunction. 3. Prior to August 21, 2013, symptoms of the Veteran’s depressive disorder did not result in occupational and social impairment with deficiencies in most areas. 4. Since August 21, 2013, symptoms of the Veteran’s depressive disorder did not result in total occupational and social impairment. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for erectile dysfunction. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2019). 2. The criteria for a rating in excess of 50 percent prior to August 21, 2013, and 70 percent disabling thereafter, for depressive disorder, not otherwise specified, have not been met. 38 U.S.C. § § 1155, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to July 1970, with additional service in the Army Reserves. The Veteran passed away in June 2017, and the appellant claims as the Veteran’s surviving spouse. These matters are before the Board of Veterans’ Appeals (Board) on appeal from Department of Veterans Affairs (VA) Regional Office (RO) rating decisions dated October 2013 and July 2014. 1. Claim to Reopen – Erectile Dysfunction In an October 2008 rating decision, the Veteran was denied entitlement to service connection for erectile dysfunction on the basis that, although the Veteran had a current diagnosis, there was no showing of a nexus to service. The evidence received since the October 2008 decision includes VA medical records showing ongoing treatment for erectile dysfunction and an April 2020 statement from the appellant indicating that the Veteran became impotent at the age of 48. However, no evidence has been received which suggests an in-service illness or injury or a nexus to service. Consequently, this new evidence is cumulative and redundant of the evidence previously of record, and does not raise a reasonable possibility of substantiating the claim. The claim for erectile dysfunction cannot be reopened. 2. Increased ratings for depressive disorder, not otherwise specified The appellant asserts that the symptoms of the deceased Veteran’s depressive disorder were more disabling than evaluated throughout the rating period. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). A March 2010 VA mental health consultation note indicated that the Veteran was referred by his primary care provider for evaluation and treatment of depression. The Veteran denied a history of any previous treatment for depression. He reported that he had been depressed for several years as he was unable to go fishing due to neuropathy. The Veteran noted he slept poorly related to pain and had occasional vivid nightmares of combat situations. He noted low energy and less interest in previously enjoyed activities. The Veteran denied suicidal or homicidal ideation, and noted he felt somewhat depressed some of the day on most days. He noted problems with concentration and attention, and he enjoyed computer games and raising roses. The Veteran reported increased irritability but denied history of physical aggressiveness. He also denied a history of mood swings. Regarding relationships, the Veteran reported being married 43 years. His three children lived nearby, and he reported good relationships with them. They were grieving for their granddaughter who died suddenly in December 2009. On mental status examination, the Veteran was appropriately groomed. His speech was coherent. He was fully oriented. Attention and concentration were within normal limits. Recent and remote memory were intact. There was no evidence of delusional thinking. The Veteran denied hallucinations. His insight and judgment were good. At a December 2010 VA examination, the Veteran reported depression, regular crying, and low energy. He slept for about 11 hours a night. The Veteran reported memory and concentration difficulties. He was married to his wife of 44 years and reported his marriage was “beautiful.” He and his wife did everything together, including bingo, shopping, and eating out. He had two daughters and one son with whom he got along, although he reported a history of problems in the past. The Veteran’s hobby was fishing. On a daily basis, the Veteran performed chores at home while his wife worked. He watched TV in the evenings. Regarding history of assaults, the Veteran reported that he hit his daughter one time 30 years prior. Objectively, the Veteran appeared clean and casually dressed. Psychomotor activity was unremarkable. Speech was spontaneous and coherent. The Veteran had a short attention span. He was fully oriented. He had a fear of heights. No hallucinations, delusions, or inappropriate behavior. Sleep impairment was described as sleeping for long periods and having dreams and restlessness. The Veteran endorsed panic attacks. There was no presence of homicidal or suicidal thoughts. Impulse control was good. Remote and recent memory were mildly impaired, while immediate memory was normal. The examiner found that the Veteran’s psychiatric symptoms were not severe enough to interfere with occupational and social functioning. A March 2011 VA mental health note indicated that the Veteran reported he had been doing well until two days prior, when he was playing a video game that involved fighting and thought “if this guy hits me I’m dead.” A night prior to the mental health visit, the Veteran had dreams of bullets coming so close to him that he could feel the air displaced, and he awoke in a panic. He reported recurrent intrusive memories of the trauma. The Veteran also reported diminished interest in significant activities, irritability, anger outbursts, concentration difficulties, hypervigilance, and exaggerated startle response. On mental status examination, the Veteran appeared well groomed and was fully oriented. His speech was normal and suggested logical and organized thought form. His mood was anxious and depressed with constricted affect. The Veteran denied suicidal and homicidal ideations. His memory was grossly intact. His insight, judgment, and impulse control were good. An April 2012 VA mental health consultation note indicated that the Veteran was referred for cognitive behavioral therapy for chronic PTSD related symptoms, particularly poor sleep associated with nightmares and continued irritability, as well as some depressive symptoms. The Veteran denied suicidal or homicidal ideation. There was no change in his mental status since his last visit. An August 2012 VA psychiatry note indicated that the Veteran was accompanied by his wife. The Veteran reported persistent anxiety. His mood was otherwise stable. He denied any suicidal or homicidal ideation. He was sleeping well, about 8 hours a night most evenings. His nightmares continued to decrease in frequency, now once a week or less. He resided with his wife and denied any marital strain or conflict. He reportedly enjoyed gardening, woodwork, and crochet. On mental status examination, the Veteran was fully oriented, casually dressed, with good hygiene and grooming. His thought process was linear. His insight, judgment, and impulse control were “fair.” His cognition was intact. A January 2013 VA psychiatry note indicated that the Veteran’s mood was “really good.” The Veteran was sleeping well. His appetite and energy were good. He was staying active with yard work and gardening. The Veteran went fishing two weeks prior, which he always enjoyed. He spent the holidays locally but had family over. He denied any marital strain or conflict, which his wife confirmed. There was no change in his mental status since his last visit. A May 2013 VA psychiatry note indicated that the Veteran acknowledged some increased irritability and a slight increase in depression over the past several months. He slept five hours a night and had an occasional nightmare. He was staying busy in the garden and his workshop. Things were “very good” with wife. His granddaughter was coming to town that weekend, which the Veteran was looking forward to. He saw his son about two to three times per week. There was no change in his mental status since his last visit. An August 2013 letter from the Veteran’s spouse in connection with the Veteran’s claim for service connection stated that “over time” the Veteran started jumping to conclusions and being paranoid of things. He was obsessed on things being done the way things were in the service. At one point he thought that his spouse was having an affair. He would have outbursts of anger over the smallest things and lost many jobs due to his behavior. His episodes of anger have resulted in violence. She noted that he would “come home yelling and screaming about Vietnam and then he will start kicking and hitting things.” She also reported that he has very limited friends, poor memory, and trouble sleeping. An August 2013 Disability Benefits Questionnaire (DBQ) indicated that the Veteran reported he was married to his spouse for 47 years. He had three adult children who were all living independently. He was socially isolated and did not have a lot of friends. His wife was his primary support system. Symptoms included: depressed mood; anxiety; suspiciousness; panic attacks more than once a week, 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; flattened affect; speech intermittently illogical, obscure or irrelevant; impaired abstract thinking; gross impairment in thought processes or communication; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; occasional rituals which interfere with routine activities; impaired impulse control; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; neglect of personal hygiene and appearance; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner opined that the Veteran’s symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood impairment. VA psychiatry notes dated July 2014 through December 2016 note that the Veteran’s mood was “good.” The Veteran reported some intermittent irritability. He was sleeping well most nights. He denied nightmares. The Veteran continued to work around the house and in his yard and took on jobs from neighbors which he enjoyed. He also enjoyed singing karaoke at VFW two to three times a week. He was eating well. The Veteran reported several trips, including a three-week trip to Pennsylvania to visit cousins and other various family members, and a seven-day cruise with his wife. There was no change in his mental status. In an April 2020 letter, the Veteran’s spouse stated that after service, the Veteran became mad easily and often; “the slightest thing could set him off.” She stated that he did not sleep well, and she could not touch him while he was asleep or he “would react with violence.” She said that he lost interest in activities and did not want to go anywhere. At times he would get so mad he would hit her. He was impatient with the grandchildren and became distant from his family and friends. After reviewing the pertinent evidence of record, the Board finds that higher ratings are not warranted at any point during this appeal. Prior to August 20, 2013, the criteria for the next higher, 70 percent rating are not met or approximated. The Board acknowledges that the Veteran suffered from depression, sleep impairment, and difficulty with memory and concentration. However, the Veteran did not have obsessional rituals that interfered with routine activities, nor did he exhibit spatial disorientation. Additionally, he was consistently observed to have an appropriate appearance and hygiene and normal speech. He maintained relationships with his immediate family and relatives. Finally, no examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas. Indeed, the December 2010 VA examiner found that the Veteran’s symptoms were not severe enough to interfere with occupational and social functioning. Since August 20, 2013, the criteria for the next higher, 100 percent rating are also not met or approximated. The Board acknowledges that the August 2013 DBQ and the Veteran’s spouse noted violent behavior. Further, the August 2013 DBQ noted that symptoms included persistent delusions or hallucinations, grossly inappropriate behavior, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). However, the DBQ contradicts the many VA psychiatric treatment notes of record from August 2013 through December 2016. Indeed, these treatment records reflect an absence of delusions or hallucinations, inappropriate behavior, or suicidal ideation. The treatment records also indicated that the Veteran showered daily and performed chores around the house. Despite this contradiction, the Board notes that the August 2013 examiner did not find that the Veteran’s symptoms resulted in total occupational and social impairment. Consequently, a 100 percent rating is not warranted. The Board recognizes the appellant’s assertions that the Veteran’s depressive disorder warrants a higher evaluation and these endorsements are admissible and have been taken into consideration. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, neither the Veteran nor his spouse have been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of his psychiatric disability according to the rating criteria. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of the Veteran's depressive disorder has been provided by clinical records and examination reports associated with the claims file and these medical findings directly address the criteria under which the Veteran's psychiatric disability is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and are therefore accorded great probative value. Accordingly, the appellant’s claim for increased ratings for depressive disorder must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a TDIU to include on an extraschedular basis is remanded. The appellant asserts that prior to the Veteran’s death, he was unable to work as a result of his service-connected depressive disorder. As indicated above, prior to his death the Veteran was in receipt of a 70 percent rating for depressive disorder, not otherwise specified, since August 21, 2013. He did not have any other service-connected disabilities. In August 2020, the appellant submitted an opinion from a vocational consultant. The examiner noted that, based on her review of the Veteran’s claims file and social security administration (SSA) records, the Veteran was unable to perform any work since April 2010. The Board notes that the record does not contain SSA records or any documents relating to the Veteran’s employment history. Consequently, remand is required to obtain any documents relating to the Veteran’s employment history. Additionally, because the examiner opined that the Veteran was unable to work since 2010, when he did not meet the schedular criteria for TDIU, the RO should refer the matter of extraschedular consideration to the Director of Compensation Service. 38 C.F.R. § 4.16 (b) (2019). The matter is REMANDED for the following action: 1. Send the appellant a VA Form 21-8940. 2. Obtain any outstanding Social Security Administration records. (Continued on the next page)   3. Refer the issue of entitlement to an extraschedular TDIU prior to August 21, 2013, to the Director of Compensation for consideration on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). 4. Then, readjudicate the remaining issue on appeal. if the decision is adverse to the appellant, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.