Citation Nr: 21011168 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-35 511 DATE: March 1, 2021 ORDER An initial evaluation of 100 percent for major depressive disorder is granted. Entitlement to special monthly compensation (SMC) based on housebound status is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in favor the Veteran, since the grant of service connection the severity, frequency, and duration of his major depressive disorder symptoms more closely approximated total occupational and social impairment. 2. The Veteran is in receipt of a total schedular rating for major depressive disorder and is service-connected for seborrheic dermatitis with neurodermatitis rated 60 percent. CONCLUSIONS OF LAW 1. The criteria for an initial total disability rating for major depressive 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 9434. 2. The criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1979. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from July 2011 and July 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the transcript is of record. In a September 2018 decision, the Board denied, in pertinent part, an evaluation in excess of 70 percent for major depressive disorder prior to October 20, 2011; and dismissed the appeal as to seborrheic dermatitis. The Board also denied entitlement to SMC at the housebound rate prior to October 20, 2011. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In a June 2020 Memorandum Decision, the Court vacated those parts of the Board’s decision and remanded for action consistent with the Memorandum Decision. In the Memorandum Decision, the Court noted that the Board previously dismissed the claim of entitlement to an increased rating for seborrheic dermatitis on the grounds that the Veteran withdrew the matter at the July 2018 Board hearing. The Court further noted that the record was unclear as to whether the Veteran understood the consequences of withdrawing his claim and instructed the Board to consider whether the Veteran intended to withdraw his claim. At the July 2018 Board hearing, the Veteran explicitly and unambiguously affirmed his desire to withdraw the issue of a higher rating for seborrheic dermatitis on the record. This withdrawal, which again was affirmed on the hearing record, was initiated by the Veteran and his representative during a lengthy pre-hearing informal discussion with the undersigned who informed the Veteran of the effect of his withdrawal. The Veteran had full knowledge of the consequences of the withdrawal, as such, the dismissal of that issue was proper. In the Memorandum Decision, the Court indicated “[t]he appellant appears confused as he is presenting arguments pertaining to a higher rating for this condition in his brief on appeal.” Notwithstanding the fact that the Veteran effectively abandoned the matter of the Board’s July 2018 dismissal of an appeal seeking an increased rating higher than 60 percent for the skin disability, the Board finds it significant that in his March 2019 CAVC Appellant Informal Brief and CAVC Appellant Informal Reply Brief, the Veteran did not dispute the fact that he withdrew this issue at the July 2018 hearing. It is also noted that he did not dispute the action taken by the Board in any written correspondence prior to filing his notice of appeal at the Court. Finally, in addition to having affirmatively withdrawn this matter at the July 2018 hearing, prior to the issuance of the September 2018 Board decision, no additional benefit would flow to the Veteran as a result of further adjudication of this issue. This was explained to the Veteran during the informal pre-hearing discussion after he and his representative informed the undersigned of their desire to withdraw this issue. The Veteran was already in receipt of the maximum schedular rating available for his seborrheic dermatitis with neurodermatitis at the time the Board’s decision was issued, and to the extent he now argues in his March 2019 appellate brief that extraschedular consideration was warranted, his disability was fully capable of evaluation under the rating schedule. The Veteran is in receipt of a total schedular rating for the major depressive disorder and SMC pursuant to 38 U.S.C. § 1114(s) since May 27, 2003. Again, no additional benefit would flow to the Veteran even were to the Board to vacate its prior decision as to the dismissal of the appeal for an increased rating for the skin disability, which it hereby declines to do. 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). 1. An initial evaluation of 100 percent for major depressive disorder is granted. The Veteran seeks a total disability rating for his major depressive disorder due to symptoms of isolation, paranoid ideation, emotional abuse, verbal aggression, increased irritability, and difficulty with concentration. See July 2018 Board Hearing. The Veteran contends that his depression, in combination with his service-connected skin disability, rendered him totally disabled since 1995. See October 2014 VA Form 9. Service connection was granted in a July 2011 rating decision, with an initial rating of 50 percent, effective May 27, 2003 under Diagnostic code (DC) 9434. In July 2012, the rating was increased to 100 percent, effective October 20, 2011. In September 2018, the Board granted an initial 70 percent rating prior to October 20, 2011. The Veteran avers a total rating is warranted for the entire period prior to October 20, 2011. 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). 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. VA treatment records throughout the appeal period document manifestations of the Veteran’s major depressive disorder. In May 2003, the Veteran’s symptoms included feelings of hopelessness/worthlessness, anhedonia, and lack of motivation. Other symptoms such as insomnia, low energy, anger, difficulty concentrating, restlessness, and passive suicidal ideation are also noted. He also reported thoughts of harming others and anger. At that time, the Veteran reported some impatience with his spouse. By January 2004, VA treatment record showed that the frequency of his outburst, thoughts of harming others, and explosive anger had increased. At that time, the Veteran reported that his wife had thrown him out and he was homeless. The Veteran’s symptoms included feelings of anger, worthlessness, hopelessness, and suicidal thoughts. Treatment records also reflect a history marked by irritability, severe estrangement with close family members, hostility, and instability in social relationships. His symptoms were worse in September 2004, where he reported increasing irritability, a concrete desire to harm others, inability to sleep more than 3 hours per night, feelings of worthlessness, hopelessness, and suicidal thoughts. Clinicians during this period noted both questionable auditory hallucinations with “vindictive” thoughts, as well as persecutory delusion and ideas of reference relating to his skin condition. However, in July 2005 VA treatment records, the Veteran reported feeling much better. The Veteran voiced hopes for a reconciliation with his wife, and improvement as to his obsessive thoughts regarding his skin condition. At that mental status examination, there was no abnormal thought content or psychotic symptoms. The clinician noted improving insight and judgment. In a November 2005 social work visit, the Veteran reported that he had a solid marriage, but wondered if his wife was becoming frustrated with him. In September 2007 VA treatment records, the Veteran reported living at home with his wife and thinking about taking a vacation together. At that time, the Veteran’s treating clinician, Dr. Bashir, noted improved insight and judgement with an impression of recurrent and mild major depressive disorder. In March 2007 VA Form 21-686c relating to dependents, the Veteran indicated that he was currently married. He also indicated that he and his spouse were living together. The Veteran was afforded a December 2004 VA examination in relation to his claim for service connection. The examiner noted a diagnosis of major depressive disorder with psychotic features. The Veteran reported an increasing history of outbursts and lashing out at others. He also noted a downhill spiral since losing his job in 1998 due to Bell’s palsy. As to social impairment, the Veteran reported troubled relationships with his siblings, separation from his wife, and a strained relationship with his children. Despite his history working on several local television stations in production, the Veteran reported being limited to doing odd jobs and manual labor for money for food. He also reported symptoms of difficulty sleeping, lack of energy, difficulty with concentration, thoughts of suicide, and feelings of helplessness and hopelessness. Upon mental status examination, the Veteran appeared disheveled. He was noted to have rambling speech, and an anxious and angry mood with an irritable affect. Thought processes were general coherent, but tended towards some tangentiality and vagueness. The examiner indicated that the Veteran was deficient in areas of attention, short and long-term memory, concentration, and judgment. The examiner concluded that the Veteran suffered from major impairment in social and occupational functioning with paranoid thinking and poor communications. At a May 2006 VA examination, the Veteran reported improvement in symptoms. Most notably, the Veteran reported improved social functioning as he had reconciled with his spouse, spoke to his siblings weekly, and was close to his children. He also reported joining therapeutic groups, enjoying many hobbies, and making friends. Regarding occupational impairment, the Veteran reported only working odd jobs. His current symptoms included irritability, anxiety, depression, stress, difficulty sleeping, and thoughts of self-harm with the ability to redirect himself. He indicated homicidal ideation but denied any attempts. The mental status examination showed that he was fully oriented, with fluent speech, and a broad and stable affect. Thoughts were coherent and logical. Judgment was intact. The examiner concluded that the Veteran suffered mild symptoms and his service-connected major depressive disorder was in partial remission with noticeable improvement of his condition since the last examination. In a February 2007 correspondence, the Veteran’s treating VA clinician indicated that he has major depressive disorder with psychotic features. The clinician concluded that the illness causes significant impairment in social and occupational functioning. Similarly, the clinician concluded that the Veteran’s major depression and anxiety disorder result in the Veteran being unable to function in a work environment. See April 2007 letter. The February 2011 VA addendum opinion noted that the Veteran appeared to be obsessed with his skin condition. Specifically, the examiner noted that the Veteran has increased manifestations of depression involving a sense of stigmatization related to his skin. This, in turn, causes an increased manifestation of social withdrawal and reduced self-esteem, and produces an unrelenting cycle of depression. In response to the Veteran’s assertion that his psychiatric disabilities had worsened in severity, he was afforded a new VA psychiatric examination in April 2012. The examiner noted a diagnosis of major depressive disorder, single episode severe with psychotic features. At the time, the examiner noted that the Veteran homeless, unemployed, and unable to maintain minimal standard of personal. Further, the Veteran reported that his wife and two children were estranged from him. The examiner found the Veteran to have total occupational and social impairment. Information received from the Social Security Administration (SSA) shows that the Veteran’s disability file has been destroyed; however, a copy of his disability determination letter is available. In the November 2008 correspondence, the Veteran was noted to have ceased gainful work in 1998. The correspondence shows that the favorable determination was based severe impairment cause by seborrheic dermatitis and major depression. Based on the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the Veteran’s psychiatric disorder more nearly approximated the level of impairment required for a disability rating of 100 percent. As shown in the VA treatment records, VA examinations, letters by treating clinicians, and the Veteran’s lay statements, his major depressive disorder was manifested impairment of thought process or communications, including excessive irritability, persistent suicidal ideation, consistent homicidal ideation or thoughts of harming others, and occasional auditory hallucinations throughout the entire appeal period. The Board also notes that the Veteran consistently expressed obsessive thoughts about his skin condition, concern regarding other people’s reaction, and isolative behavior as a result. The September 2004 VA treatment records identified this as persecutory delusions and ideas of reference. The February 2011 VA addendum opinion characterized the Veteran’s behavior as obsessive and results in a cycle of depression, perceived stigmatization, and social withdrawal. As to the impairments caused by these symptoms, the evidence overwhelming shows that the Veteran suffered total occupational impairment. As noted, the Veteran has not had gainful employment during the appeal period. Moreover, he engaged in menial work such as yard work in exchange for food during times he was homeless. As noted by VA clinicians, the Veteran’s obsessive thoughts, persecutory delusions, excessive irritability, homicidal ideation, and social isolation would not make him viable in an occupational environment. The Veteran’s level of social impairment is more complicated. There were periods in which the Veteran had a good relationship with his wife, children and siblings. At the May 2006 VA examination, the Veteran also reported making friends and enjoying recreational hobbies. However, the record overwhelming indicates that these good times were fleeting, and his social relationships were turbulent as a result. For instance, the Veteran reported that he was separated from his wife in January 2004 after she changed the locks and put his belongings out. He also reported that everyone was against him. Although he then reported hopes for a reconciliation in July 2005 and cohabitating by November 2005, the Veteran testified at the Board hearing that he was again separated, homeless and isolated from any meaningful relationship by 2008. More often than not during the appeal period, the Veteran was socially isolated due to his anger, impaired impulse control, and psychiatric symptoms. During these times, he had limited interactions with his family and no other significant relationship. As such, the Board finds that his symptoms also resulted in total social impairment. Ultimately, these symptoms more nearly approximate total social and occupational impairment. As the evidence is at least in equipoise as to whether the record shows total occupational and social impairment, the maximum 100 percent rating is warranted effective May 27, 2003. 2. Entitlement to SMC based on housebound status is granted. SMC is payable if a veteran is permanently housebound. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The law provides for two avenues through which to receive this benefit: “statutorily housebound,” and “housebound-in-fact.” 38 C.F.R. § 3.350 (i). Under both avenues, the veteran must first have a single service-connected disability rated as 100 percent disabling. 38 C.F.R. § 3.350 (i). To be found statutorily housebound, the veteran must have additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350 (i)(1). The Board has granted a 100 percent rating for major depressive disorder above. The Veteran also has an award of service connection for seborrheic dermatitis with neurodermatitis, rated as 60 percent disabling. The Board concludes that the criteria for SMC at the housebound rate are met from May 27, 2003. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i); Bradley v. Peake, 22 Vet.App. 280 (2008). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, Associate 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.