Citation Nr: 21003959 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 15-41 097A DATE: January 25, 2021 ORDER A 100 percent rating for an acquired psychiatric disability (previously considered as insomnia) for the period from December 6, 2013 is granted. A total disability rating based on individual unemployability as the result of service connected disability (TDIU) is dismissed. FINDINGS OF FACT 1. For the period from December 6, 2013, the Veteran’s acquired psychiatric disability was manifested by symptoms producing total occupational and social impairment. 2. Throughout the period on appeal, the Veteran has been in receipt of both a 100 percent disability rating and an award of special monthly compensation (SMC) under 38 U.S.C. § 1114. CONCLUSIONS OF LAW 1. For the period from December 6, 2013, the criteria for a 100 percent rating for an acquired psychiatric disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9410. 2. The appeal of the claim for a TDIU is moot, and the claim is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1977 to February 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision that granted service connection for an acquired psychiatric disability, which disability was originally characterized specifically as insomnia, and assigned an initial 30 percent rating. This matter was most recently before the Board in July 2018, when, in pertinent part, it remanded the Veteran’s claim for an increased rating in order to provide him with an additional psychological evaluation. The Veteran underwent such an examination in February 2020. The Board finds that there has been substantial compliance with its July 2018 remand directives, and it will proceed to a decision. The Board additionally remanded the issues of service connection for bilateral blindness, a traumatic brain injury (TBI), and an acquired psychiatric disorder. In June 2020, the Agency of Original Jurisdiction (AOJ) granted service connection for an acquired psychiatric disorder. In November 2020, the AOJ granted service connection for bilateral blindness and a TBI. The Board will not further consider these claims for service connection because the AOJ’s June 2020 and November 2020 rating decisions granted the Veteran’s claims in full. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). A June 2020 rating decision recharacterized the Veteran’s service-connected insomnia disability as part of a broader service-connected acquired psychiatric disability, and as a result, it increased the rating of this disability to 70 percent effective June 3, 2015, and to 100 percent effective December 14, 2017. The June 2020 rating decision additionally granted an award of SMC under 38 U.S.C. § 1114 effective as of the Veteran’s December 6, 2013, date of claim. Increased Rating The Veteran’s acquired psychiatric disability is rated 30 percent before June 3, 2015, 70 percent from June 3, 2015, to December 14, 2017, and 100 percent on and after December 14, 2017. The Board’s analysis will address whether greater ratings are available to the Veteran before December 14, 2017, because the Veteran is already in receipt of the highest available schedular rating on and after that date. 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. 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). Specifically with regard to the symptom of suicidal ideation, the Board’s analysis must address whether suicidal ideation has an impact on the veteran’s occupational and social impairment in most areas. Id. The General Formula provides for the following ratings, in pertinent part: 70 percent: occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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. 100 percent: total occupational and social impairment due to such symptoms such 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; or memory loss for names of close relatives, own occupation or own name. Turning to the facts in this case, the Veteran filed his underlying claim of entitlement to service connection for insomnia in December 2013. An October 2014 rating decision granted service connection specifically for insomnia and its associated symptoms and assigned an initial 30 percent rating. In June 2015, a private psychologist found that the Veteran’s psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas. The Veteran underwent an additional VA examination on December 14, 2017, at which time the examiner found that the Veteran’s psychiatric symptoms resulted in total occupational and social impairment. The examination report described long-standing symptoms of depression and other mood impairment, substance abuse, and antisocial behavior. The Veteran underwent an additional VA examination in March 2020, at which time the examiner found that the Veteran’s psychiatric symptoms resulted in total occupational and social impairment. The March 2020 examination report, like the December 2017 examination report, described a long-standing history of symptoms such as grossly inappropriate behavior, gross impairment in thought processes, impaired judgment, and an inability to function in an occupational environment. In a June 2020 rating decision, the AOJ recharacterized the Veteran’s service-connected disability. Instead of service-connection only for insomnia and its associated symptoms, the rating decision granted service connection more broadly for a service-connected acquired psychiatric disability. A broader consideration of the Veteran’s acquired psychiatric symptoms led the AOJ to increase the rating of the Veteran’s acquired psychiatric disability to 70 percent effective June 3, 2015, and to 100 percent effective December 14, 2017. Turning to an analysis of this evidence, the Board finds that the Veteran’s psychiatric symptom picture has remained relatively constant since filing his claim for benefits. A single 100 percent rating of the Veteran’s acquired psychiatric disability is therefore warranted. In support of this finding, the Board notes that the June 2020 rating decision found that the December 2017 examination report supported a 100 percent rating of the Veteran’s symptoms as of the date of the examination. The December 2017 examination report, however, is by nature a backwards-looking summary of the effect of the Veteran’s psychiatric symptoms on his occupational and social functioning. The December 2017 examiner described a decades-long pattern of significant psychiatric impairment resulting in total occupational and social impairment. Neither the December 2017 examination report nor the Veteran’s extensive psychiatric treatment records support a finding that his psychiatric symptoms worsened only as of the December 14, 2017, date of examination. The weight of the evidence is in favor of the assignment of a single 100 percent rating for the Veteran’s acquired psychiatric disability since the date of the Veteran’s claim (December 6, 2013). TDIU The issue of entitlement to a TDIU was remanded in July 2018. Subsequent thereto, the Veteran was awarded a 100 percent combined disability rating throughout the period on appeal. A 100 percent disability rating does not necessarily render the issue of entitlement to a TDIU moot because the award of a TDIU may itself justify the award of SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In this case, however, a November 2020 rating decision also granted SMC at the (l) level throughout the period on appeal. With the Veteran in receipt of both a total schedular rating and SMC at the (s) level for the entire period on appeal, the issue of entitlement to a TDIU is moot. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.