Citation Nr: A21017158 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 210830-181623 DATE: October 22, 2021 ORDER Entitlement to a rating in excess of 100 percent for prostate cancer is denied. Entitlement to a rating in excess of 30 percent for unspecified anxiety disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), as of May 10, 2019, is denied. FINDINGS OF FACT 1. The Veteran's psychiatric disability was productive of 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), but not occupational and social impairment with reduced reliability and productivity. 2. The issue of entitlement to TDIU is moot as of May 10, 2019. 3. VA's rating schedule does not provide for a rating higher than 100 percent for prostate cancer. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for unspecified anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9413. 2. The issue of entitlement to TDIU as of May 10, 2019, is made moot by the assignment of a 100 percent rating for prostate cancer as of May 10, 2019. 38 U.S.C. §§ 7104, 7105(d)(5). 3. There is no legal basis for the assignment of a rating higher than 100 percent for prostate cancer. 38 U.S.C. § 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code 7528. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1967. An April 2021 rating decision continued a 100 percent rating for prostate cancer; continued a 30 percent rating for unspecified anxiety disorder; and found entitlement to individual unemployability to be moot. In August 2021, the Veteran requested a direct review of the appeal by the Board. Consequently, this case comes before the Board of Veterans' Appeals (Board) on appeal from the April 2021 rating decision by the Department of Veterans Affairs (VA) Veterans Benefits Administration Regional Office (RO). As the current appeal stems from the Veteran's initial selection of the higher-level review, in which he acknowledged that the review will be based upon the evidence submitted to VA at the time of the previous AOJ decision on the issue or issues on appeal, only evidence through the date of the April 2021 rating decision will be considered. VA will not seek additional evidence on behalf of the Veteran as part of the higher-level review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). The current appeal before the Board was filed by the Veteran on February 17, 2021. The Board acknowledges that the Veteran has a separate appeal stream related to an increased rating for prostate cancer that was filed by the Veteran on May 9, 2019, which resulted in a July 2019 Rating decision. On October 29, 2019, VA received the Veteran's VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The Veteran requested a hearing docket review of the appeal by the Board. The Veteran is now awaiting a hearing for the increased rating for prostate cancer claim from May 2019 to July 2019. Therefore, that claim is not ripe for adjudication by the Board at the current time and is subject to adjudication in a future decision. 1. Entitlement to a rating in excess of 30 percent for unspecified anxiety disorder. Disability ratings 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. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating 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. In order to rate 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 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The review is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The service-connected unspecified anxiety disorder associated with prostate cancer has been rated under the provisions of Diagnostic Code 9413, using the General Rating Formula for Mental Disorders. Under the provisions of Diagnostic Code 9413 and the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for 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). A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 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 closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in rating 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 rating 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). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The current appeal before the Board concerning an increased rating for unspecified anxiety disorder associated with prostate cancer was filed by the Veteran on February 17, 2021. The unspecified anxiety disorder is currently assigned a 30 percent rating effective December 23, 2019. The Veteran contends that the rating assigned for the service- connected psychiatric disability does not accurately compensate the severity of the psychiatric disability, and that higher ratings are warranted. After review of the relevant medical and lay evidence of record, resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disability was productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Therefore, the Board finds that, throughout the period on appeal, the psychiatric disability warranted no more than a 30 percent rating. Therefore, the claim for a rating in excess of 30 percent for a psychiatric disability must be denied. At an April 2021 VA examination, the psychiatric disability was found to be a mental condition that was formally diagnosed; but not result in symptoms severe enough either to interfere with occupational and social function or to require continuous medication. The Veteran reported being married to a spouse of 40 years and having some relationships with three brothers and a 98-year-old mother. The Veteran worked as a maintenance mechanic in a mill for 35 years until he retired in 2009. He stated that he did good work and that anxiety did not affect his work performance at any time. Symptomatically, the Veteran's psychiatric disability was found to be manifested by anxiety, and mild memory loss, such as forgetting names, directions, or recent events. Behaviorally, the Veteran was on time for the approved video telehealth assessment interview. Hygiene and grooming appeared adequate. He was friendly and cooperative at all times. His speech was normal in rate and flow. He was oriented to person, place, time, and purpose of the assessment. His mood appeared euthymic. There were no clinically significant indications of cognitive dysfunction. There were no indications of mania or psychosis. The Veteran was found to be capable of managing his own financial affairs. After a thorough review of the claims file and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's psychiatric disability warrants no more than a 30 percent rating. The Board finds that the Veteran's psychiatric condition did not meet, or more nearly approximate, the criteria for a 50 percent rating during the appeal period. Through the period on appeal, the evidence of record does not show that the Veteran's psychiatric disability more nearly approximated the criteria for a 50 percent rating. The Board finds that the criteria for the next higher 50 percent rating are not demonstrated by the evidence of record, as the psychiatric disability is not shown to be manifested by 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; difficulty in establishing and maintaining effective work and social relationships. The Veteran maintained social relationships and did not exhibit the types or severity of symptoms that would result in reduced reliability and productivity. Therefore, the Board finds that a 50 percent rating is not warranted pursuant to Diagnostic Code 9413 during the period on appeal. The Board finds that, while the symptoms listed in VA's General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, the Veteran's overall disability picture is more nearly approximated by the criteria set forth for a 30 percent rating, pursuant to Diagnostic Code 9413, for the appeal period. The Board further notes that no examiner found the Veteran to have occupational and social impairment with reduced reliability and productivity during this time period. The Veteran maintained good relationships with his wife and family. No record indicates any inability to work due to the psychiatric symptoms during this period. Therefore, the Board finds that impairments with reduced reliability and productivity, or deficiencies in most areas due to psychiatric symptoms have not been shown. Accordingly, the Board finds that a rating in excess of 30 percent for a psychiatric disability is not warranted. In considering whether the Veteran was entitled to a higher rating, the Board has carefully considered the contentions and assertions that a psychiatric disability was of such severity so as to warrant increased schedular ratings. In making a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which are found to be persuasive or unpersuasive and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as anxiety, and depressed mood, because that requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the overall disability picture does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. Accordingly, even resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for entitlement to a rating in excess of 30 percent for unspecified anxiety disorder have not been met. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings. The Board is appreciative of the Veteran's faithful and honorable service. However, as the preponderance of the evidence is against the claim for increased ratings for unspecified anxiety disorder, during the period on appeal, the claim for an increased rating must be and is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), as May 10, 2019. A claim for TDIU is considered part of an increased rating claim when the issue of unemployability is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran asserts unemployability due to service-connected disabilities during the current appeal. However, the claim of entitlement to TDIU, effective May 10, 2019, has been made moot by the award of a 100 percent schedular rating for prostate cancer, effective May 10, 2019. Bradley v. Peake, 22 Vet. App. 280 (2008). A 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443 (1994); Swan v. Derwinski, 1 Vet. App. 20 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a particular service-connected disability, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33 (2001) (request for TDIU moot where 100 percent schedular rating was awarded for the same period). The current appeal before the Board concerning entitlement to TDIU was filed by the Veteran on February 17, 2021. As the Veteran is now in receipt of a 100 percent rating, effective May 10, 2019, based on the service-connected prostate cancer, effective May 10, 2019, there remains no time period on appeal where the schedular rating is less than total, as required for consideration of the assignment of TDIU. 38 C.F.R. § 4.16. The Board is cognizant of the fact that the receipt of a 100 percent schedular rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). VA's duty to maximize a claimant's benefits includes consideration of whether disabilities establish entitlement to SMC under 38 U.S.C. § 1114. Buie v. Shinseki, 24 Vet. App. 242 (2011). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. Bradley v. Peake, 22 Vet. App. 280 (2008). That scenario is not present here, as the Veteran is assigned a 100 percent rating for prostate cancer and prior to May 10, 2019, the Veteran's disability ratings did not meet the percentage requirements for consideration for TDIU pursuant to 38 C.F.R. § 4.16(a). The Board further notes that the Veteran is already in receipt of SMC for the service-connected loss of use of a creative organ for erectile dysfunction associated with prostate cancer effective May 10, 2019. Therefore, the issue of entitlement to a TDIU is moot as of May 10, 2019. The assignment of a 100 percent rating for service-connected prostate cancer effective May 10, 2019, makes the issue of entitlement to TDIU moot as of that date. Accordingly, the Board finds that the issue of entitlement to TDIU is moot and the claim for TDIU as of May 10, 2019, is denied. Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). 3. Entitlement to a rating in excess of 100 percent for prostate cancer. The current appeal before the Board concerning an increased rating for prostate cancer was filed by the Veteran on February 17, 2021. The Veteran requested a rating in excess of 100 percent for prostate cancer. The Board observes that the Veteran is currently rated 100 percent disabling for prostate cancer, effective May 10, 2019. The service-connected prostate cancer has been assigned the maximum schedular rating available under 38 C.F.R. § 4.115b, Diagnostic Code 7528. Diagnostic Code 7528 provides that an initial rating of 100 percent shall be assigned for the first six months after the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure. If, at the end of that period, there has been no local recurrence or metastasis, residuals will be rated as voiding dysfunction or renal dysfunction, whichever is predominant. 38 C.F.R. § 4.115b, Diagnostic Code 7528. The Board observes that the Veteran was initially diagnosed with prostate cancer in 2011. During the most recent VA examination in March 2021, the Veteran was found to still have active prostate cancer in the watchful waiting phase. The award of a 100 percent schedular disability rating essentially makes moot a claim for an increased disability rating, as benefit sought on appeal has already been granted. Additionally, the record does not present such an exceptional or unusual disability picture as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321. The Veteran is in receipt of special monthly compensation on account of service-connected prostate cancer; the Veteran received SMC on the basis of loss of uses of a creative organ due to service-connected erectile dysfunction associated with prostate cancer. Consequently, referral for a higher rating on an extraschedular basis is not warranted. Thun v. Peake, 22 Vet. App. 111, 115 (2008). A Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the ratings of the individual conditions does not capture all the service-connected disabilities experienced. However, in this case, resolving reasonable doubt in favor of the Veteran, there are no additional service-connected disabilities that have not been attributed to a specific service-connected disability. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); Mittleider v. West, 11 Vet. App. 181 (1998). Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. There is no period on appeal where the Veteran's prostate cancer has been rated less than total. Thus, there remain no allegations of errors of fact or law for appellate consideration regarding the rating currently assigned. Accordingly, the Board does not have jurisdiction to review the appeal, and it is denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.