Citation Nr: 21005670 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-38 201 DATE: February 2, 2021 ORDER Entitlement to a disability evaluation in excess of 30 percent prior to July 6, 2016, for service-connected depressive disorder with neurocognitive disorder is denied. Effective July 6, 2016 to October 27, 2017, entitlement to a disability evaluation of 50 percent, but no higher, for service-connected depressive disorder with neurocognitive disorder is granted. Effective October 28, 2017 to the present, entitlement to a disability evaluation of 100 percent for service connected depressive disorder with neurocognitive disorder is granted. Effective October 28, 2017, but no earlier, entitlement to SMC based on the need for aid and attendance of another is granted. Entitlement to a TDIU prior to October 28, 2017 is denied. Entitlement to a TDIU beginning October 28, 2017, is dismissed as moot. FINDINGS OF FACT 1. From December 3, 2015 to July 5, 2016, the evidence of record demonstrates that the Veteran’s service-connected depressive disorder with neurocognitive disorder manifested in symptoms causing 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 normal conversation). 2. From July 6, 2016 to October 27, 2017, the evidence of record demonstrates that the Veteran’s service-connected depressive disorder with neurocognitive disorder manifested in symptoms causing occupational and social impairment with reduced reliability and productivity. 3. Beginning October 28, 2017, the evidence of record demonstrates that the Veteran’s service-connected depressive disorder with neurocognitive disorder manifested in symptoms causing total occupational and social impairment. 4. Effective October 28, 2017, but no earlier, the evidence of record demonstrates that the Veteran’s service-connected disabilities rendered him so helpless as to require the aid and attendance of another. 5. Prior to October 28, 2017, the Veteran’s service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation. 6. Beginning October 28, 2017, the claim for TDIU is moot as the Veteran holds a 100 percent schedular rating as well as SMC based upon the need for aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent prior July 6, 2016, for service-connected depressive disorder with neurocognitive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 2. Effective July 6, 2016 to October 27, 2017, the criteria for a disability rating of 50 percent for service-connected depressive disorder with neurocognitive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 3. Effective October 28, 2017, the criteria for a disability rating of 100 percent for service-connected depressive disorder with neurocognitive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. 4. Effective October 28, 2017, but no earlier, the criteria for SMC based on the need for aid and attendance are met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350(b), 3.352(a). 5. The criteria for a TDIU prior to October 28, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 6. Entitlement to a TDIU beginning October 28, 2017 is dismissed moot. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1956 to July 1959, from February 1961 to February 1965, and from June 1965 to November 1979. By way of background, the Veteran filed a service connection claim for a psychiatric disability on December 3, 2015. In a March 2016 rating decision, the agency of original jurisdiction (AOJ) awarded the Veteran service connection for dysthymic disorder, with an initial 30 percent disability rating effective December 3, 2015. Within one year of this determination, new and material evidence in the form of VA treatment records were associated with the file that pertain to the Veteran’s assigned rating. After receipt of a claim for increase in November 2016, the AOJ issued another rating decision in March 2017, denying the claim. In that decision however, the AOJ recharacterized the service-connected diagnosis from dysthymic disorder to persistent depressive disorder. The Veteran disagreed with the decision and perfected this appeal. As new and material evidence was received within one year of the Veteran’s initial rating, the Board finds that the propriety of the Veteran’s initial disability rating for all times since December 3, 2015 remains on appeal under the provisions of 38 C.F.R. § 3.156(b). The Veteran testified at a videoconference hearing before the undersigned in October 2019. A transcript is of record. In a September 2020 rating decision, the AOJ again recharacterized the Veteran’s service-connected diagnosis. The Veteran’s service-connected disability now includes both persistent depressive disorder and neurocognitive disorder, again, effective December 3, 2015. The AOJ awarded a 100 percent disability rating for this disability effective September 21, 2020, along with an SMC award based on a need for the aid and attendance of another, also effective September 21, 2020. The Board has considered all the evidence of record, and will assess the propriety of the initial disability rating for his service connection psychiatric disability, entitlement to a TDIU (which has been raised by the record during pendency of the appeal) and entitlement to a SMC based on the need for aid and attendance, for each stage. I. Laws and Regulations Disability ratings are determined by the criteria set forth in the VA Schedule for Rating Disabilities, and are intended to represent the average impairment of earning capacity resulting from the disability. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. a. Rating Psychiatric Disorders The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides the following ratings for psychiatric disabilities: A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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 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. When determining the appropriate disability evaluation under the general rating formula, the primary consideration of the Board is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). A Veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio, 713 F.3d at 117 ; 38 C.F.R. § 4.130. b.) TDIU Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). If a claimant does not meet the above criteria, a total disability evaluation may still be assigned, but on a different basis. It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, the rating boards are required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. c.) SMC While the Veteran has not filed a formal claim for the issue of entitlement to SMC, such claims are considered components of any increased rating claim and must be addressed where the evidence demonstrates entitlement. Akles v. Derwinski, 1 Vet. App. 118 (1991) (holding that entitlement to SMC is to be inferred as part of an increased rating claim when applicable). SMC at the aid and attendance rate is payable when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Here there is no assertion that the Veteran has lost use of his hands or feet, is blind or is permanently bedridden, and the evidence does not so suggest. That stated, under 38 C.F.R. § 3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: the inability of the Veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; inability of the Veteran to feed himself because of the loss of coordination of upper extremities or because of extreme weakness; inability to attend to the wants of nature; incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from the hazards or dangers incident to his daily environment. It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). II. Analysis a.) December 3, 2015 to July 5, 2016 Fort the reasons discussed below, for the time period from December 3, 2015 to July 5, 2016, the evidence of record demonstrates that (1) the Veteran’s service-connected psychiatric disabilities manifested in symptoms that caused occupational and social impairment with only occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation); (2) the Veteran’s service-connected disabilities did not render him unable to secure or follow gainful employment; and (3) the Veteran was not so helpless as to need regular aid and attendance of another. Importantly during this time period, the Veteran underwent a psychiatric examination in January 2016. After reviewing the Veteran’s history, interviewing and examining the Veteran, the examiner assessed the severity of the Veteran’s psychiatric disorder as only causing mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during significant stress. The examiner noted that at the time, the Veteran had been married to his wife for 55 years, and had three children with whom he described close and loving relationships. The Veteran endorsed good social relationships, and he enjoyed singing at the karaoke bar. He was retired after a career as a letter carrier with the post office, following a long military career. The examiner identified only two predominant symptoms at the time—namely, anxiety and chronic sleep impairment. There were no behavioral problems identified, and the examiner cited to prior VA treatment showing management of symptoms through medication. Leading up to the examination, treatment records did not show a level of severity worse that that described by the January 2016 examiner. Of note, on a September 24, 2014 VA Mental Health Outpatient Note, it was recorded that the Veteran was actually off medication for the prior six months. The Veteran reported a nightmare occasionally, and some mild anxiety, but otherwise had “no complaints.” The Veteran’s judgment was intact, and he demonstrated clear cognition, with memory and concentration grossly intact. He was talkative, cooperative, polite, and casually groomed. After the January 2016 examination, the Veteran was assessed again by VA on March 28, 2016. At that assessment, the Veteran reported nightmares two times per month, but indicated he experienced no avoidance symptoms, and denied an increased startle response. He expressed that his mood was “just sort of there,” but did indicate he was thinking about getting into an exercise program. His energy was “alright,” and he denied any suicidal or homicidal ideation. He denied symptoms that appear consistent with mania or hypomania. He denied audio or visual hallucinations, as well as paranoia or delusions. He had fair hygiene, was cooperative and polite, with normal speech, intact judgment, orientation, and clear sensorium. As will be discussed below, the Veteran experienced neurocognitive decline that was documented in VA treatment records degree beginning on July 6, 2016. Per the AOJ’s recent rating decision, the Veteran’s neurocognitive disorder has been incorporated as a service-connected condition with persistent depressive disorder. As such, starting July 6, 2016, the Board believes an increased rating is warranted, and will discuss the increase below. However, prior to that point, the evidence simply does not show that the Veteran had severe enough mental health symptoms (either due to depression or any initial signs of neurocognitive disorder) to warrant the assigning of a rating higher than the currently assigned 30 percent. His symptoms, although present, appeared managed by medication, with little impact on his social life and relationships. Occupationally, the Veteran’s cognitive functioning appeared wholly intact during this time period, and there was no indication that the Veteran’s symptoms of anxiety and sleep impairment were severe enough to cause reduced reliability and productivity as contemplated by a 50 percent rating. The Board notes that other than his mental health disorder, the Veteran’s service-connected disabilities during this time period from December 3, 2015 to July 5, 2016 consisted of hypertension (rated at 10 percent disabling), hiatal hernia (rated at 10 percent disabling) and a healed left third finger fracture (rated as zero percent disabling). His combined rating was 40 percent. The medical evidence of record shows that the Veteran was driving himself at the time, was deemed competent to handle disbursement of funds, and was able to perform his daily activities. There is no indication that his service-connected disabilities rendered him so helpless as to need regular aid and attendance of another. Moreover, given his training and background, the evidence does not suggest that the Veteran’s service-connected disabilities would render him unable to secure or follow gainful employment. During his military career the Veteran was a musician and band superintendent. Following service, he had a 20-year career with the postal service as a letter carrier, after which he retired. The Veteran’s disabilities do not show that the Veteran would be precluded from performing light labor jobs, driving jobs, or other jobs requirement musical expertise for the appeal period prior to July 6, 2016. Accordingly, the Board finds that for the time period from December 3, 2015 to July 5, 2016, the assignment of an initial rating greater than 30 percent for the Veteran’s service-connected psychiatric disability is not warranted, nor is entitlement to a TDIU or SMC based on a need for the aid and attendance of another. b.) July 6, 2016 to October 27, 2017 The Veteran’s VA treatment records show that the Veteran underwent extensive neuropsychological testing on July 6, 2016 with Dr. W., and that his performance during that assessment showed the presence of “mild neurocognitive disorder.” More specifically, the Veteran presented with subjective impairment of cognition, objective deficits of memory, semantic fluency, and set-shifting. The Veteran described his symptoms having insidious onset with gradual decline. He had a specific pattern of cognitive deficits on testing, which coupled with his family history and age, were concerning that he was on the trajectory for Alzheimer’s disease. However, the changes also appeared temporally related to multiple significant psychosocial stressors. He was able to drive himself to the appointment, and exhibited no major visuo-spacial deficits. He reported feeling “ok” regarding depressive symptoms. Importantly, at this assessment, it was noted that the Veteran’s condition, although in decline, included “no appreciable changes in his management of instrumental activities of daily living.” Subsequently, at a February 2017 VA examination, the Veteran described his relationship with his wife as “tenuous.” He still described “alright” relationships with his children and had six or seven friends. His typical day included shopping or running errands, visiting people at a storage facility, or watching television. The Veteran drove himself to the appointment, was neatly groomed and casually dressed, and walked without any assistance. He knew the purpose of the examination, and was able to recall recent and remote information about his life including names, dates, and locations of a wide variety of events. The examiner identified symptoms of depression, but the overall assessment of the February 2017 VA examiner was the same as that of the January 2016 examiner, noting symptoms that manifest in mild or transient symptoms. Based on the evidence above, a factually ascertainable worsening in symptoms is shown as of July 6, 2016 with the addition of mild neurocognitive disorder to the Veteran’s disability picture. As discussed above, the Veteran himself described his symptoms as gradually worsening; however, the medical assessment at the time included characterization of his neurocognitive disability as mild. The Veteran’s treatment reports show that although the Veteran still maintained relationships with his wife, children and friends, his relationship with his wife was becoming more strained. Notwithstanding these setbacks, the Veteran still exhibited the ability to socialize with others, run errands, go shopping, have conversations, and drive. The indications of the mild decline of memory and cognition during this time period, coupled with the Veteran’s symptoms of depression which maintained since prior to July 6, support a finding that as of July 6, 2016, a higher 50 percent disability rating is warranted for the Veteran’s service-connected psychiatric disability. The evidence does not show that the Veteran’s symptoms during this time period manifested in occupational and social impairment in most areas (as is required for the award of a 70 percent rating), to include any of the serious symptoms generally associated with such a rating outlined in the criteria. As above, despite a worsening of symptoms, the evidence also does not demonstrate that his service-connected disabilities would preclude gainful employment during this time period, as the Veteran still was able to socialize with others, drive, perform errands, and communicate well. There is no indication that he would be precluded from employment involving light labor, driving, musical instruction, or other social interaction. The Board finds it probative that clinician who noted the presence of mild neurocognitive disorder on July 6, 2016 specifically recognized that the Veteran exhibited no appreciable changes in his management of instrumental activities of daily living. In this connection, the Board also finds that the evidence fails to show the Veteran’s service-connected disabilities rendered him so helpless as to need regular aid and attendance of another. Accordingly, the Board finds that for the time period from July 6, 2016 to October 27, 2017, the assignment of an initial rating of 50 percent, but no higher, for the Veteran’s service-connected psychiatric disability is granted. However, entitlement to a TDIU or SMC based on a need for the aid and attendance of another is not warranted during this time period. c.) October 28, 2017 to the present The evidence demonstrates that from October 28, 2017 to the present, the Veteran’s service-connected depressive disorder with neurocognitive disorder manifested in symptoms causing total occupational and social impairment, warranting the assignment of a 100 percent rating. Indeed, an October 28, 2017 VA Neuropsychology Note indicated that the Veteran’s family wished to have the Veteran assessed due to a decline in memory from his prior evaluation. The Veteran reported frequently walking into a room and forgetting why he was there. The Veteran’s family noted that the Veteran frequently lost things, accused others of stealing, forgot to buy things off a list, had trouble finding the correct words to speak, and had difficulty with inhibition. The Veteran described himself as losing control, and his family described him as obsessive. They recalled an incident where the Veteran threw a tantrum at a restaurant. They described his loss of gumption for activities. The Veteran asserted he could still drive, but this family stated that he now hits stationary objects when he drives, and gets distracted easily. They indicated they do not feel safe driving with him. He prepares lunch and breakfast, but sometimes forgets to eat. At one time he was found microwaving a paper plate. He forgets what he spends money on, and his family stated that the Veteran was confused as to how much things are worth. The examiner indicated that the Veteran’s performance at the assessment was consistent with major neurocognitive disorder, representing a change for the worse since his last assessment in 2016. He was deemed dependent in his instrumental activities of daily living. The examiner strongly encouraged the Veteran to discontinue driving for his safety and the safety of others. Subsequent treatment records do not show improvement, and further support a finding that the Veteran’s disability worsened significantly. See December 2017 VA Social Work Outpatient Note (attending adult daycare 4 days a week as Veteran cannot be left alone); January 2018 VA Social Work Note; February 2018 VA Addendum; May 2018 VA Addendum; February 2019 VA Social Work Note; August 2019 VA Primary Care Note (describing an episode where the Veteran was lost in a movie theatre for approximately 15 minutes after following individuals he thought to be his family members, and also indicating that the Veteran had repeatedly thrown objects at his spouse); August 2020 VA Social Work Note (describing the Veteran as “pleasantly confused” and noting that he will repeatedly call daycare staff and not remember that he spoke with staff minutes before.) The Board also recognizes that at his October 2019 hearing before the Board, the Veteran frequently misremembered treatments, and his wife had to correct him or refresh his memory. Finally, at his most recent examination in September 2020, the examiner specifically assessed the severity of the Veteran’s service-connected psychiatric conditions as causing total occupational and social impairment. Based on this evidence, the Board finds that a factually ascertainable increase in severity is shown by the October 28, 2017 Neuropsychology Note, such that a 100 percent schedular rating is warranted for the Veteran’s service-connected depressive disorder with neurocognitive disorder as of that date. The Board also finds that, as of October 28, 2017, it is clear that the Veteran’s service-connected disabilities rendered him so helpless as to require the aid and attendance of another, warranting the award of SMC under the provision of 38 U.S.C. § 1114(1). Finally, while the issue of TDIU is not automatically rendered moot by the award of a 100 percent schedular rating, in this case, there is no further benefit that would extend to the Veteran with a TDIU award for the time period from October 28, 2017. Indeed, by this decision the Veteran will have a 100 percent rating from that date, with a separate SMC award based on a need for the aid and attendance of another. For this reason, entitlement to a TDIU is dismissed as moot, for all times from October 28, 2017 to the present. III. Conclusion In sum, the evidence is against a finding that a rating higher than 30 percent is warranted during the appeal period prior to July 6, 2016 for the Veteran’s service-connected psychiatric disability. However, an increased initial rating to 50 percent is granted, effective July 6, 2016, and to 100 percent is granted effective October 28, 2017. Entitlement to SMC based on the need for the aid and attendance of another is granted, effective October 28, 2017, but no earlier. Entitlement to a TDIU prior to October 28, 2017 is denied, and entitlement to a TDIU from October 28, 2017 to the present is dismissed as moot. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bristow Williams, 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.