Citation Nr: 21006955 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 17-64 509 DATE: February 8, 2021 ORDER Prior to October 24, 2017, entitlement to a 100 percent rating for severe recurrent major depressive disorder with psychotic features, but no higher, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to October 24, 2017 is dismissed. FINDINGS OF FACT 1. Prior to October 24, 2017, the Veteran’s service-connected psychiatric disorder symptoms have more nearly approximated total occupational and social impairment. 2. Prior to October 24, 2017, the Veteran has been granted a 100 percent schedular rating for the Veteran’s psychiatric disorder. CONCLUSIONS OF LAW 1. Prior to October 24, 2017, resolving all reasonable doubt in favor of the Veteran, the criteria for a 100 percent rating for severe recurrent major depressive disorder with psychotic features, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9400. 2. The grant of a 100 percent rating for the Veteran’s psychiatric disorder renders moot the appeal for a TDIU. 38 U.S.C. §§ 1155, 5101(a), 5121, 5121A; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from July 2007 to July 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in August 2016. In March 2018, the AOJ increased the Veteran’s rating to 100 percent for severe recurrent major depressive disorder with psychotic features effective October 24, 2017, the date of the Veteran’s psychiatric hospitalization for depressive disorder. Because the increase in evaluation of the Veteran’s psychiatric disorder does not represent the maximum evaluation available for the condition, the Veteran’s claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In an April 2019 decision, the Board denied entitlement to a rating in excess of 50 percent for depressive disorder and entitlement to a TDIU prior to October 24, 2017. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2020, pursuant to a Joint Motion for Remand, the Court vacated the April 2019 decision and remanded the matter to the Board for action consistent with the Joint Motion. 1. Entitlement to a rating in excess of 50 percent for the Veteran’s service-connected psychiatric disorder prior to October 24, 2017 A March 2013 rating decision granted service connection for depressive disorder, not otherwise specified (NOS) with a rating of 50 percent effective July 9, 2011. The Veteran filed a claim for entitlement to an increased rating in January 2015. An August 2016 rating decision continued the 50 percent rating, which the Veteran appealed. In March 2018, the AOJ increased the Veteran’s rating to 100 percent for severe recurrent major depressive disorder with psychotic features effective October 24, 2017. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. After a review of the evidence, for reasons set forth below and resolving all reasonable doubt in favor of the Veteran, the Board finds that the symptoms of the Veteran’s service-connected psychiatric disorder have more nearly approximated the criteria for a 100 percent rating prior to October 24, 2017. Prior to October 24, 2017, the Veteran’s service-connected psychiatric disorder was rated under 38 C.F.R. § 4.130, Diagnostic Code 9435 and the General Rating Formula for Mental Disorders. Prior to October 24, 2017, the evidence of record reflects that the symptoms of the Veteran’s service-connected psychiatric disorder included, depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective social relationships. See March 2016 VA examination. In March 2016, the Veteran reported that his depression had become more chronic and severe since his last examination in February 2013. The examiner opined that the Veteran currently had transient but frequent, moderately severe symptoms of depression that caused marked distress and occupational and social impairment with reduced reliability and productivity due primarily to amotivation and avolition. The Veteran’s psychiatric disorder also included symptoms of irritability and difficulty concentrating. See February 2017 VA treatment record. The February 2017 VA treatment provider noted that the Veteran appeared to be experiencing significant difficulties with functioning due to depression as well as trauma and grief related guilt. The Veteran reported that he had an unpleasant experience during a previous hospitalization for approximately a week or two in 2011. As a result, the Veteran had anxiety about subsequent hospitalizations, which had been the main barrier preventing him from seeking mental health treatment at VA in the past. Additionally, the evidence of record reflects that the Veteran had symptoms of auditory hallucinations, panic attacks, feelings of worthlessness and excessive or inappropriate guilt with possible delusions, and near continuous depression. See April 2017 and May 2017 VA treatment record. Finally, the lay evidence of record reflects that the symptoms of the Veteran’s psychiatric disorder included a peristent danger of harming himself. In August 2016, the Veteran’s parent stated that the Veteran was constantly thinking about hurting himself, and a few times she stopped him from hurting himself, and tried not to send him to the hospital because he feared being hospitalized again. She reported that he did not have any friends, or a social life, and he always felt guilty. See August 2016 Notice of Disagreement, August 2016 Lay statement. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). According to the General Rating Formula, a 50 percent evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Resolving all reasonable doubt in favor of the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that the symptoms of the Veteran’s psychiatric disorder have more nearly approximated the criteria for a 100 percent rating prior to October 24, 2017. Prior to October 24, 2017, the symptoms of the Veteran’s psychiatric disorder were manifested primarily by ongoing symptoms of irritability, depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective social relationships, difficulty concentrating, auditory hallucinations, panic attacks, feelings of worthlessness or excessive/inappropriate guilt with possible delusions, near continuous depression, and a persistent danger of hurting himself. Thus, the Board finds that the Veteran’s symptomatology throughout the period on appeal has been consistent with and more nearly approximated total occupational and social impairment, the criteria for a 100 percent rating. See 38 C.F.R. §§ 4.126, 4.130. Although the medical evidence does not show symptomatology such as gross impairment in thought processes or communication; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation or name, the symptoms noted in the rating schedule 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 disability rating. Mauerhan, supra. Thus, even though not all the listed symptoms compatible with a 100 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated by a 100 percent rating are demonstrated throughout the period on appeal. 2. Entitlement to a TDIU prior to October 24, 2017 VA will grant a TDIU when the service-connected disabilities are rated less than total, but the Veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. As a TDIU can only be awarded in cases where the schedular rating is less than total, there is no basis for awarding a TDIU. 38 C.F.R. § 4.16(a). The Board is cognizant of the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008), in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. Here, the Veteran’s service-connected psychiatric disorder is rated at a 100 percent schedular disability rating, and the Veteran’s other service-connected disabilities include bilateral tinnitus with a 10 percent rating from July 9, 2011; left upper lateral lip scar with a 10 percent rating from July 9, 2011; and cataracts, left ear hearing loss and left upper lateral lip scar with noncompensable ratings, which do not meet the statutory requirements to form the basis for an award of special monthly compensation, the Veteran has not alleged otherwise in this regard. Thus, to also award a separate TDIU rating in addition to the schedular 100 percent rating based on the Veteran’s service-connected psychiatric disorder would result in duplicate counting of the disability. For these reasons, the award of the total schedular rating effectively creates a situation where there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. In such an instance, dismissal is appropriate. See 38 U.S.C. § 7105(d). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gerline R. Fleury Johnson 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.