Citation Nr: 21012167 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 11-17 478 DATE: March 3, 2021 ORDER Entitlement to an initial disability rating greater than 50 percent for an acquired psychiatric disorder is denied. Beginning November 16, 2012, entitlement to a rating of 70 percent for acquired psychiatric disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from November 16, 2012 is granted. FINDINGS OF FACT 1. Before November 16, 2012, the probative evidence of record does not reflect that the Veteran’s symptoms from his acquired psychiatric disorder approximated occupational and social impairment in most areas. 2. Beginning November 16, 2012, the probative evidence of record does not reflect that the Veteran’s symptoms from his acquired psychiatric disorder approximated total occupational and total social impairment but does reflect occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood. 3. The Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment from November 16, 2012. CONCLUSIONS OF LAW 1. Before November 16, 2012, the criteria for a rating greater than 50 percent for service-connected acquired psychiatric disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9435. 2. Beginning November 16, 2012, the criteria for a 70 percent rating for service-connected acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9435. 3. From November 16, 2012, through April 27, 2020, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 3.340, 3.341(a), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 2002 to December 2002 and July 2004 to November 2005. The matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The March 2010 rating decision granted service connection for an adjustment disorder (claimed as depression) at 30 percent disabling, effective October 29, 2009. The December 2015 rating decision increased the 30 percent to 50 percent effective October 29, 2009. In a May 2020 rating decision, the RO increased the rating from 30 percent to 70 percent, effective March 25, 2020. In September 2020, the RO granted a TDIU, effective March 25, 2020. In November 2011, the Veteran and his wife, K. H., testified at a Travel Board hearing before a Veterans Law Judge (VLJ). A copy of the transcript has been associated with the claims file. As the VLJ who presided over the November 2011 hearing is no longer at the Board, the Veteran was notified in a February 2017 correspondence that he was entitled to another hearing before a different VLJ. 38 C.F.R. § 20.707. The Veteran did not respond, within the specified period, so the Board proceeded with its adjudication of the claim. The issues were previously before the Board in February 2014 and January 2018. The most recent remand mandated that the RO issue a statement of the case (SOC) for entitlement to a greater than 20 percent for a lower back disorder. In April 2020, the RO issued the SOC. As the Veteran failed to perfect this issue to the Board, it was dropped from the current proceedings. In this regard, the Board finds that there has been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The January 2018 remand also mandated that the RO provide the Veteran with a VA examination to determine the severity of his psychiatric disorder. The examinations of April 2020 and September 2020 are adequate for adjudication. There has also been substantial compliance in this regard. Id. The Board has recharacterized the Veteran’s claim from his mood disorder to one of an acquired psychiatric disorder, to include mood disorder and unspecified depressive disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (stating that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). I. Increased disability ratings Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. A. Entitlement to an initial disability rating greater than 50 percent for an acquired psychiatric disorder is denied. B. Beginning November 16, 2012, entitlement to a rating of 70 percent for an acquired psychiatric disorder is granted. The Veteran’s mood disability is currently rated at 50 percent disabling under Diagnostic Code 9435. 38 C.F.R. § 4.130. Psychiatric disorders are evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, an evaluation of 50 percent 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; and difficulty in establishing effective work and social relationships. Id. A 70 percent rating is assigned when there is an occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals that 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 work-like setting); and inability to establish and maintain effective relationships. Id. 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; 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; and memory loss for names of close relatives, own occupation, or own name. Id. 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). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran’s an acquired psychiatric disorder was deemed 50 percent disabling, effective June October 29, 2009, which is the date of his claim. In the rating decision of May 2020, the RO increased the rating to 70 percent, effective March 25, 2020. The Veteran avers that a higher rating is warranted for his acquired psychiatric disorder. During the periods on appeal, the clinical records, mental status examinations (MSEs), and VA examinations show varying degrees of his psychiatric disability. Treatment records dated in October 2009 indicate that the Veteran was referred by his occupational therapist due to increased depressive symptoms, two previous suicide attempts, and ongoing cannabis dependence. A MSE was conducted and revealed that the Veteran was pleasant and cooperative, yet poorly dressed. His mood was described as “Tired. I did not go to bed until 3:30 this morning,” and he appeared mildly dysphoric at times. His affect was appropriate to thought content, and his thought processes were linear and goal-directed. There was no gross evidence of any psychosis, thought disorder, mania, or hypomania. Depressive symptoms included increased energy and anhedonia. He denied any delusions or hallucinations, suicidal or homicidal thoughts. The clinician found that he did not “meet the criteria for involuntary hospitalization/commitment today [but] he knows he can present as a walk-in or report to the nearest emergency room should he have any increase in depressive symptoms or return of his suicidal thoughts.” In December 2009, the Veteran was afforded a VA Mental Disorders (except for PTSD and Eating Disorders) Disability Benefits Questionnaire (DBQ). He reported that he resided with his parents, girlfriend, and a younger brother, all of whom he got along with. His girlfriend and father supported him financially, including funding his cannabis use. He also reported having had friends whom he got along with, and his leisure activities included playing video games and watching television. As he was unemployed, his leisure activities were watching television and playing video games. He reported that he continued to abuse cannabis and was unmotivated to quit, and he continued to see Dr. S. for his psychiatric treatment. He had been non-compliant with his medications because of the adverse effects, including gastrointestinal issues. The examiner’s Axis I diagnosis was mood disorder, NOS, and cannabis abuse. Regarding the symptoms thereof, the examiner noted irritability, diminished sleep, concentration, motivation, energy, and hope, all of which had been daily and of moderate in severity since service. The psychological examination revealed that the Veteran was appropriately dressed. His psychometer was noted as restless. His speech unremarkable, with a cooperative attitude. His affect was constricted, his mood was anxious, and he had a short attention span. The Veteran was oriented to person, time, and place. His thought process was unremarkable, while this thought content was a preoccupation with one or two topics. Regarding his judgment, he understood the outcome of his behavior. Neither panic attacks, suicidal or homicidal ideation, hallucination, or delusional thoughts were noted. A problem with daily living was not noted, nor the inability to maintain personal hygiene. The Veteran’s remote memory was normal, and the recent memory was mildly impaired. The examiner determined that the Veteran’s psychiatric disorder resulted in deficiencies in judgment with his continued use of cannabis, in thinking with his feelings of hopelessness, with the strained family relations, with his unemployability, and with his depression and irritable mood. During a March 2010 VA examination, the Veteran was deemed appropriately attired with fair grooming. The clinician noted that he was irritable and surly, at times, and pulled out a 3-4 inch fishing knife with which he began to clean dirt from his fingernails. The clinician informed him that weapons were not allowed on federal property and asked to hold the knife, which she promised to return at the end of the session. He replied, “You’re damn right I’ll get it back. I know my rights!” A MSE found him alert and fully oriented, with gross attention adequate for testing. His speech was of normal prosody and volume. His thought process logical and coherent, with no evidence of hallucinations or delusions. His recent and remote memory were intact. His insight and judgment were fair, with his overall affect restricted in range and dysphoric mood. Treatment records dated in May 2010 indicate the Veteran’s report that his mood was “usually great; I am fine.” His speech was articulate, goal-oriented, and his affect was pleasant and friendly. His thought processes were logical and coherent. His recent and remote memory were intact, and there was no evidence of visual or auditory hallucinations. Treatment notes dated in December 2010, indicate the Veteran’s October request for an increase in his medication seems to be working. He reported an improved sleep and mood, with his mood now stable. He reported now enjoying hunting and other activities. A MSE noted normal mood, with full affect and appropriate thought content. His thought process was goal-directed without abnormality and no evidence of psychosis or a thought disorder. Treatment notes dated in May 2011 indicate the Veteran’s report of stable mood and that his medications were working. He remarked that May was the “best month [he’s] had.” Treatment notes dated in July 2011 indicate that the Veteran reported improvement in his irritability. His mood was stable, and he was doing well. He enjoyed hunting and fishing. A MSE found the Veteran casually dressed, very pleasant, and cooperative. His mood was euthymic with a full and appropriate affect. Thought processes were linear and goal-directed without abnormality. There was no evidence of psychosis, thought disorder, mania, or hypomania. He denied any thoughts of self-harm, suicidal or homicidal ideation. During his November 2011 hearing testimony, the Veteran testified to having experienced “panic attacks, anger, memory loss, motivation, and problems in every category … some are [smaller] than others … some days are a lot harder than others because [he] just [did not] want to do anything at all …” During an August 2011 follow-up clinical visit for low back pain, the Veteran reported that he was doing better with his memory since coming off of his narcotic medications. He also reported having recently married in July, which was going well. A psychological evaluation noted no change in his behavior or posture. His speech was normal and reflected normal insight, memory, and orientation. Memory loss was noted, and his working with SLP and memory improvement strategies. His affect was limited. A Nursing Education Note, however, of the same date, indicated that “[t]his writer gave this Veteran the Department of Veterans Affairs suicide prevention card, with instructions to call the suicide prevention hotline number or to go to the closest emergency room if he was feeling angry, depressed, having thoughts of self-harm and/or harming others. This Veteran was instructed to keep the card with them at all times. [The] Veteran accepted the card and acknowledged the instructions.” Treatment notes dated November 16, 2012, noted that the Veteran answered in the affirmative to a series of questions on the VHA Pocket Card Suicide Risk Questions, including “Are you feeling hopeless about the present or future? Have you had thoughts of taking your life?” He indicated having thoughts of taking his life “1 month” ago. He reported no plan to take his life but yes, to ever having had a suicide attempt. Regarding Suicide Risk Warning signs exhibited by the Veteran, the clinician noted “Hopelessness.” During an April 2013 Suicide Risk Assessment, the Veteran reported yes to feeling hopeless about the present/future. On April 16, 2013, the Veteran was admitted to VAMC Nashville with a diagnosis of suicide/homicidal ideation. The Veteran was noted to have endorsed increased depression and anxiety and low mood, avolition, anhedonia, poor sleep, passive suicide/homicide ideation. Upon examination, the Veteran’s risk for violence was low due to no report or observation of violence currently or in the past six months. He had no history of harming others. He denied having any thoughts of homicidal intent. Suicide risk was also low due to no current report of active suicide intent or plan of suicide. The clinician noted the Veteran’s history of suicide attempts six years earlier and suggested continued medication compliance, refraining from substance use, and continuing to see his outpatient doctors. During a March 2014 clinical visit, it was noted that the Veteran had a Negative Suicide Screen, and the clinician found that he did not demonstrate suicidal ideation/suicidal behaviors/suicidal risk per my assessment. Treatment notes dated in March 2014 indicate the Veteran’s complaint of increased mood and anxiety symptoms. He reported seeing spots and shadow figures on the wall, and shapes and figures when he closed his eyes. He also reported that he heard loud noises that others did not hear but denied hearing voices. He endorsed that he sometimes felt that God sent him messages via television. He denied current thoughts of harming himself or others. Treatment notes dated March 28, 2014, a day later than the above-noted entry, reflected that a MSE found the Veteran’s mood to be irritable and depressed “every day,” with appropriate affect. His speech was clear and coherent, not pressured. His motor activity noted no motor retardation or agitation. He had short and long-term memory problems, (per the Veteran), and his intellectual functioning was average. He reported hallucinations, seeing spots, shapes, and shadow figures on the wall, when he closed his eyes and was currently seeing an orange ring, and hearing loud noises that others did not hear. There were no voices/command hallucinations. Regarding delusions, he reported sometimes feeling that God sent him messages via TV. He denied suicidal and homicidal ideations. The Veteran underwent a second VA Mental Disorders DBQ in November 2014. He reported that since his last examination, he had since divorced and moved to Indiana in a camper with a girlfriend. He reported still being close to his father but otherwise estranged from other family members, with little social support. He also reported still being unemployed. The examiner noted the Veteran had substantial legal problems, including approximately a dozen arrests for possession, violation of probation, and writing bad checks. He was recently arrested at a Walmart for theft. The examiner diagnosed mood disorder, NOS, and noted that the Veteran did not have more than one diagnosed mental disorder. The examiner determined that the Veteran was occupationally and socially impaired with occupational and social impairment with reduced reliability and productivity. The examiner noted that the following symptoms applied to the Veteran’s disorder: depressed mood, anxiety, suspiciousness, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships, and the inability to establish and maintain effective relationships. Other notable symptoms attributable to his disability, were symptoms of PTSD, including memories of traumatic events and avoidance, which did not appear to rise to the level required for a clinical diagnosis. His primary problem, however, was his mood. Regarding the behavioral observation, the examiner noted that the Veteran was almost an hour late for the appointment and was accompanied by his father. He was casually dressed, talkative, in no acute distress, though very emphatic in describing his symptoms. The examiner noted that the Veteran was capable of managing his financial affairs. The examiner remarked that the Veteran had a history of mood-related difficulties secondary to his back pain. His primary problem was related to depression and anxiety, less so to symptoms of PTSD. His difficulties directly resulting from mood problems were moderate. The examiner explained that the Veteran’s adjustment and mood-related problems were not of a magnitude/severity that would prevent him from working. Treatment notes dated in May 2015 indicate the Veteran’s report of cognitive/memory problems. The clinician, however, noted that his screen did not show significant issues, and his symptoms would be further assessed in his appointment. He was found negative for psychosis, per self-report, and denied homicidal ideation or intention. The clinician noted that the Veteran reported to Ms. H., RN, “some suicidal ideation, but denied intent. He noted he wished he wouldn’t wake up at times, primarily due to pain.” In a May 2015 Patient Health Questionnaire-9 (PHQ-9), the Veteran reported little interest or pleasure and feeling down, hopeless nearly every day, trouble sleeping, tired, low energy, feelings of failure, guilt, trouble concentrating, and motor retardation, agitation occurring nearly every day. He noted poor appetite, overeating, and suicidal ideations for more than half the days. The Veteran underwent a suicide screening. His response to the following questions are as follows: In the last year, there was a time when the Veteran had thoughts that life was not worth living; in the past year, there was a time that he wished he were dead such as going to sleep and not waking up; in the past year, there was not a time he reported thoughts of wanting to take his own life; in the past year he did not report seriously considering suicide; and in the last year, he did not report having made a suicide attempt. Based on the above responses, he was not found at high risk for suicide. Treatment notes from a Homeless Outreach, dated in October 2016, note a brief MSE indicating the Veteran was casually dressed, and his activities of daily living were marginal. His attitude was a cooperative, pained expression. His speech was soft volume, breathy speech, not pressured. His mood was depressed, and his affect was guarded. His thought process was goal-directed and future-oriented, while his thought content was concentrated on his pain levels and how people left him as he ran out of money. Neither suicide nor homicidal ideation was expressed, nor implied, nor were there perception of hallucinations or delusions. His memory/concentration was inattentive and distracted, while his insight/judgment was noted as fair. Treatment notes dated in March 2017 indicate that the Veteran was kicked out of his previous housing and was currently homeless, and sleeping outside. A MSE noted his disheveled appearance and poor hygiene. His attitude was noted as desperate for housing. The clinician noted his behavior – the Veteran ate cookies throughout the session. His speech was within normal limits. His mood was depressed, and anxious, while his affect was congruent with mood. His thought process/content was goal-directed. He denied suicidal and homicidal ideation, plan, or intent and noted that “I love myself.” He was oriented x 3, and his memory/concentration was within the normal limit. No hallucinations or delusions were noted, and insight/judgment was fair, and he was future-oriented. Treatment notes dated in late 2017 and early 2018 indicate that the Veteran was at low risk and/or no significant risk for suicidal ideation or preparatory behavior. However, in April 2018, it was noted that his risk factors had increased since his last clinical visit. The clinician noted the Veteran’s tangential, rapid speech, difficulty concentrating, elevated mood, poor insight, and judgment. His risk for suicide was noted as his drug abuse, and the decreased risk was noted as his positive family/social support. A MSE conducted in May 2018 revealed the Veteran’s “very tired” appearance. The clinician noted that the Veteran was in a deep sleep, in a chair in the hallway, while awaiting his appointment. He had good hygiene and was dressed appropriately for the weather. His attitude was cooperative, with minimal talking, given his being sick with strep. His speech minimal, and his affect was flat. His thought process was logical and goal-directed, and he was oriented x 3. No suicidal or homicidal ideations were expressed or implied, and he was future-oriented. His memory and concentration were within normal limits, but his insights and judgment were poor. Treatment notes dated in July 2018 indicate that the Veteran was evicted from his HUD/VASH voucher housing within one month of the leasehold due to his active addiction. Nursing Triage notes dated July 08, 2019, a day after his eviction, indicate that he arrived at the ER via ambulance and reported feeling like he would die after using heroin last Friday. A MSE revealed that he was oriented x 4 and spoke in different tones of voice, intermittently. Treatment notes dated July 09, 2018, indicate that the clinician specifically inquired of the Veteran if he had any suicidal or homicidal ideations, and he reported that “he did not have any at the time.” However, a MSE noted the Veteran’s disheveled appearance and that he was in moderate distress. His mood was depressed and anxious, while his was affect was congruent, although, in some physical discomfort. His speech was of normal rate, rhythm, and tone, and he denied audio and visual hallucinations. His thought process was linear, sequential, and relevant, while his impulse control, insight, and judgment were poor. In terms of his thought content, the clinician noted suicide and homicidal ideation per the history of present illness (HPI). Treatment notes dated in September 2018, reflect that the Veteran presented to the ER with a depressed mood and suicidal ideations, a desire for substance detoxification, and current withdrawal from opiates. He reported using drugs one day before admission and limited social support. He also reported increased depression for the last 2-3 months, poor energy, concentration, and poor sleep most nights of the week. He reported that the only way he could get good sleep is “if [he] gets some good dope.” He also reported having had suicidal ideations two to three days a week for the last two to three months with the feeling that “I’m about to explode; I can’t take it anymore,” and “I just want to die. I wish somebody would shoot me and get it over with.” The clinician noted that the Veteran had not thought of a specific method and did not express explicit intent for suicide. He also reported feeling hopeless and alone: “it’s just God and me.” The Veteran also reported significant anxiety, feeling on edge, and feeling like he’s in a “24/7 panic attack,” which he described as “my brain, heart, and lungs just stop.” He denied nightmares but reported being told he acted frightened in his sleep. He also denied homicidal ideation, audio and visual hallucinations, delusions, paranoia, and accessibility to firearms. A Suicide Risk Assessment found that he was of moderate risk based on ideation, substance abuse, acute onset of hopelessness, social isolation, and acute medical problems. Treatment notes dated in November 2018 reflect that the Veteran’s father was deceased, but he was close to his mother. His brother was currently in prison. An April 2019 Homeless Program Note reflects that the Veteran had a minimal support system. He reported that he speaks to his mother on the phone, but she lives with family members “from [his]my dad’s side [and they] want anything to do with [hi]m.” He also reported that all his friends were using drugs, and he was trying to avoid them. Treatment records dated in May 2019 indicate a MSE finding of an appropriately attired male with good hygiene and a mild speech anomaly but clear and understandable. His mood was “stressed, depressed, helpless, hopeless,” but he denied suicide and homicidal ideation when directly asked. His affect was depressed, and his thought processes were logical, and goal-directed, while his thought content was within normal limits. Regarding perceptual disturbances/delusions, he reported that his “anxiety could make [him] somewhat paranoid.” He was oriented x 3 with intact cognition, memory, insight, and judgment. A Suicide Risk Assessment was negative. The clinician’s impression of acute and chronic risk for suicide was low. She noted that “today, he is future-oriented and is seeks to engage in treatment. He identifies as a person of faith, and his faith is important to him.” Treatment notes dated in June 2019 note that the Veteran reported that he was not that close to his now deceased father but was close to his mother, from whom he was estranged because she had chosen his father’s “family over [hi]m.” An August 2019 note indicated the Veteran’s “Assigned Plan of Care: depression, suicidal ideation.” Treatment notes dated the same day reflect that his acute risk was low for suicide and the chronic risk was intermediate based on depression and suicidal ideation. A discharge risk assessment of the same month notes the Veteran’s decreased risk for suicide included his reality testing ability, positive, therapeutic relationship, motivation in treatment, and his seeking treatment. A Suicide Prevention Safety Plan was placed in his treatment chart. Treatment notes dated in September 2019 note that the Veteran exhibited significant suicide behavior for he was isolated and withdrawn. Notes later that month, indicate that the Veteran admitted a history of suicide attempt last year with an intentional overdose on heroin. The clinician noted that the Veteran had been admitted to inpatient psychiatric care at the Indianapolis VAMC four times in the past three months for suicide ideations in the context of continued drug use and homelessness. He was most recently discharged two weeks ago. A treatment note dated the same month, note Significant Suicide Risk Behavior included isolative or withdrawal behavior. Treatment notes of early October 2019 indicate that the Veteran was admitted for substance-induced psychosis. It was also noted that he recently enrolled in a Dayton residential substance program from August 27, 2019, to September 25, 2019. He had one prior suicide attempt in September 2018 via an intentional heroin overdose. He did not seek treatment after the attempt. A MSE dated in October 2019 noted that the Veteran appeared in no apparent distress (NAD) while sitting in milieu eating breakfast. His hygiene was poor, and his attitude/behavior was guarded and borderline hostile. His speech was pressured, fast, loud, and difficult to understand. His mood was “alright,” and his affect was guarded. His thought process was disorganized, tangential, and incoherent at times. He denied suicidal, homicidal ideations and audio or visual hallucinations. He, however, reported hearing voices and seeing visions from God. His insight and judgment were poor. On October 01, 2019, the Veteran presented to emergency detention (ED) with concern for being drugged by a female friend. The psychiatry department was consulted about his bizarre behavior. On evaluation, it was noted that the Veteran was psychotic with delusions of grandeur, visual hallucinations, tangential and irrelevant speech and thought process, and agitation. He claimed that he was invincible and will live 131 years, reportedly confronted strangers in the street telling them when they will die. He denied suicidal and homicidal ideation. UDS was positive for methamphetamine and cannabis, and he refused voluntary admission. It was noted that ED was filed for safety as the Veteran was impaired by a likely substance-induced psychotic state and was a danger to himself at this time. ED was filed, and the Veteran was transported with security present, given expressed agitation with hospitalization. A MSE noted a disheveled appearance, poor hygiene, naked, fidgeting in the hospital bed. His attitude was grandiose and irritable, and his mood and affect were “great.” His affect was euthymic, full range. His speech was hyperverbal, pressured, and loud. His perceptual disturbances - he “sees God in everything.” His thought processes were tangential, irrelevant, loose associations. His thought content was delusions of grandeur (believing he is the Son of God, reborn today, believes he is invincible and in a secret organization). He was alert and oriented x 3. He reported amnesia from the weekend. His concentration and attention were poor, as was his impulse control, insight, and judgment. A Suicide Risk Assessment noted factors for increased risk was substance abuse; factors for decreased risk was his spirituality (mediation). The clinical impression of acute risk was low. The Veteran’s chronic risk for suicide was high. A MSE of October 2019 noted the Veteran’s appearance as NAD, lying in bed, with poor hygiene. His attitude/behavior was uncooperative and guarded, absent any abnormal movements. His speech was pressured at times, loud and difficult to understand. His mood was “just want to get out of here,” while his affect was guarded. His thought process was linear and relevant, while his thought content was the denial of suicidal, homicidal ideations and audio and visual hallucinations. His insights and judgment were poor. A treatment note dated in October 2019 notes the Veteran’s pertinent history of diagnosis of adjustment disorder with depressed mood, chronic pain, 2013 suicide ideation, September 2018 opioid detox, and passive suicidal ideation, June 2019 suicidal ideation and opioid use, and August 2019 suicidal ideation. During a psychological consult in January 2020, the Veteran’s chief complaint was suicidal ideation. He requested help with detoxication from drugs. A MSE noted that during the session, the Veteran had his eyes closed much of the interview, but awake, alert, appeared his stated age, wearing clean clothes, fair grooming. His attitude was somewhat gamey and guarded, but he answered questions appropriately, for the most part. His behavior was calm, no PMA/PMR, poor eye contact, no AIMs. His speech was clear, with normal rate, volume, and tone. His mood was “not good,” and his affect was blunted, and congruent with stated mood. His thought process was sequential and relevant. His thought content revealed that he had suicidal ideation intentionally using heroin/meth overdose. He denied homicidal ideation, audio, and visual hallucinations, or paranoia. He was oriented x 4, and his recent and remote memory was grossly intact. His attention span/concentration was grossly intact, his insight and judgment were fair. A Suicide Risk Assessment noted factors for increased risk, including ideation, method, history of suicide attempts, substance abuse, and chronic homelessness. Factors for decreased risk included seeking treatment. The clinical impression of acute and chronic risk was intermediate because of multiple risk factors. It was determined that he needed a Suicide Prevention Safety Plan. A January 2020 chart review revealed that the Veteran had six past psychiatric hospitalizations, with the last at the Indianapolis VA on September 30, 2019. The treatment record of the same date revealed that the Veteran reported “yesterday” that he felt suicidal with a plan to overdose on heroin. He also reported that he attempted to overdose on heroin in 2018 and that he felt depressed for 15 years since he broke his back while in the Army. He reported that his drug use began three years ago after his father passed away, and he constantly felt depressed. He endorsed anhedonia, hopelessness, decreased sleep, fatigue, lack of concentration, and lack of motivation. He denied manic or hypomanic symptoms. He stated that he became angry easily and was easily emotional. He endorsed anxiety and panic attacks at times, with racing heart and sweating that lasted a few minutes. He also endorsed having nightmares, flashbacks, increased startle response, and avoidance of stimuli related to his experiences in the military. He reported that he has “seen things” but remained vague and was unable to describe what he saw. He denied current visual and auditory hallucinations. The clinician noted that the Veteran was under the influence during the session. A MSE conducted in early January 2020 revealed the Veteran’s appearance was disheveled, with soiled clothing. His behavior was cooperative, and his speech was slowed, not pressured with a normal tone. He was alert, fully oriented, and his mood was “I’m tired and hungry.” His affect appeared tired, and his thought processes were concrete and thought content was no noted delusions, paranoia, or overt psychosis. The Veteran denied suicidal or homicidal ideations, did not appear to respond to internal stimuli. His insight and judgment were limited. On January 28, 2020, a discharge diagnosis noted that the Veteran had meth-induced psychosis, major depressive disorder, recurrent, severe, and post-traumatic stress disorder, chronic. It was also noted the Veteran’s “history significant for polysubstance use who presented with worsening mood and recent suicidal ideations in the setting of homelessness and continued substance use.” On February 26, 2020, treatment records noted that the Veteran requested treatment for drugs. A MSE examination upon admission noted the Veteran’s flat but alert affect. A MSE on discharge noted the Veteran to be oriented x 3, with a bright affect. A MSE of March 2020 noted the Veteran’s neat, clean, and appropriately dressed appearance. His behavior was pleasant and cooperative, and his speech was of normal rate and tone. His mood was “OK,” and his affect, a range of emotions within normal limits. His thought content was logical and sequential, and his thought processes were logical and sequential. He denied suicidal and homicidal ideations. He was oriented x 3, and his attention/concentration was attentive. His memory was intact, and both insight and judgment were poor. He was unreliable, positive for multiple drugs, but denied drug use. He was motivated for housing and suboxone. The clinical impression for acute and chronic risk for suicide was low. In April 2020, the Veteran was afforded a second VA Mental Disorders DBQ. The Veteran reported daily depression. The examiner diagnosed unspecified depressive disorder and unspecified personality disorder, including Cluster B traits (borderline, antisocial). She noted that the diagnosed unspecified depressive disorder is an update to the service-connected mood disorder, as “mood disorder” is no longer a diagnosis in the DSM-5. The examiner determined that the Veteran was occupationally and socially impaired with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. She noted that it was possible to differentiate which impairment is caused by each mental disorder. The majority of impairment is caused by the unspecified personality disorder, including cluster B traits (borderline, antisocial) and polysubstance use disorders (stimulant, opioid, and cannabis use disorders). A minority of impairment is caused by the unspecified depressive disorder. The examiner noted that the following symptoms applied to the Veteran’s disorder: depressed mood, anxiety, suspiciousness, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, and suicidal ideation. The examiner remarked that the “[V]eteran denied suicidal ideation since January 2020. However, he was hospitalized for suicidal ideation at that time. He has also been hospitalized for suicidal ideation and substance abuse problems three other times since 2018. Although not at current risk, this [V]eteran appears to be impulsive and have poor coping skills. When faced with stress/life challenges, it appears that in the past, he has quickly become suicidal in those situations.” The examiner deemed the Veteran at increased but not current imminent risk. A June 1, 2020 treatment indicated that although the Veteran “denied suicide ideations today,” there were concerns for his safety given relapse, which was compounded by homelessness and social isolation/lack of social support. The Veteran declined to call his mother (who is blind) to let her know what is going on. He stated that “she lives with her sister and his cousins and ‘they don’t like me.’” An admission note of the same day reflects that he was admitted to 5E on May 31, 2020, for suicide ideation without any intent or plans. On direct inquiry, he currently denies any current suicidal/homicidal intent or plans. The clinician noted his history and noted: “High Risk for Suicide Flag.” A MSE noted the Veteran’s poor hygiene and grooming. His mood was “I am fine,” and his affect was euthymic, irritable at times. He was alert, and oriented x 4, with grossly intact memory. His insight and judgment were limited. Neither suicidal nor homicidal ideation was not noted, nor were audio or visual hallucinations. Notes dated June 01, 2020, indicate that per ED notes, the Veteran self-reported to ED “because it [wa]s time for a change.” The Veteran reported using cocaine daily for approximately one month and experiencing suicidal ideations. He denied suicide attempts or preparatory behavior. It was noted that the Veteran was homeless. Also, it was noted that the factors for increased risk for violence risk to self over the past six months included ideation, substance abuse, recent changes in support; increased social isolation. Factors for the decreased risk included positive social/family support, sense of responsibility to family, children in the home, pregnancy, reality testing ability, and positive therapeutic relationship; motivated in treatment. It was noted that the Veteran had access to firearms. Treatment notes dated in late June 2020 indicate that the Veteran was “released from jail this morning where he had been for the last 30 days for a probation violation for paraphernalia.” Before being jailed, he was in 5E for three days for vague suicide ideation and substance abuse. The Veteran reported feeling hopeless, helpless, and worthless. He was, however, future-oriented, and identified support in his mother and girlfriend, and his reading of the Bible, which he had during the session. He denied suicidal ideation, method, plan, intent, and preparatory behavior. The clinician noted the Veteran’s “six [hospital] admissions to 5e, most recently discharged June 02, 2020.” A MSE of later June 2020 noted that the Veteran was appropriately dressed and wearing a face mask. His speech was of normal rate, tone, and volume. His mood was “excited,” and “anxious,” while his affect was appropriate, congruent with mood. His thought processes were coherent, logical, goal-directed, and organized. He denied suicidal and homicidal ideations but confirmed hearing “voices talking about God.” He was awake, alert, and oriented, and his recent and remote memory were intact. His attention span/concentration was good, as was his insight and judgment. He denied self-directed violence (SDV) via intent, method, plan, preparatory behavior. The clinician deemed his acute risk for suicide low. In September 2020, the Veteran was afforded a third VA Mental Disorders DBQ. The Veteran admitted to continuing his use of street drugs and problems drinking. The examiner noted that he was currently awaiting participation in the Roudebush VAMC substance use disorder program, which was delayed because of Covid 19. He also reported having had two failed marriages but was currently engaged to a woman who was incarcerated. He indicated minimal social life, staying at home most of the time with very few friends. The examiner diagnosed generalized anxiety disorder and noted that the Veteran did not have more than one mental disorder. The examiner determined that the Veteran was occupationally and socially impaired with occupational and social impairment with reduced reliability and productivity. The examiner noted that the following symptoms applied to the Veteran’s disorder: depressed mood, anxiety, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. Regarding the behavioral observation, the examiner noted that the Veteran was almost an hour late for the appointment and was accompanied by his father. He was casually dressed, talkative, in no acute distress, though very emphatic in describing his symptoms. The examiner noted that the Veteran was not capable of managing his financial affairs because he had not completed his most recent addictions interventions program. He has a history of relapse, particularly when under stress and is highly anxious, and is susceptible to social manipulation, as well as poor decision making at these times. Based on the above, the Board finds that the evidence before November 16, 2012, does not support deficiencies in most areas such as work, family, judgment, thinking, or mood due to the symptoms of similar severity. Thus, a 70 percent rating for the Veteran’s an acquired psychiatric disorder is not warranted. The Veteran’s symptoms, as noted above, show that his judgment, thinking, and thought process were normal. His symptoms did not include suicide ideation, obsessional rituals, and near-continuous panic affecting the ability to function independently. Although he was found to have had a depressed mood and sleep difficulties, they were not noted to affect his ability to function independently, appropriately, and effectively. His speech memory and orientation were normal, and there was no evidence of psychosis, thought disorder, mania, or hypomania. Moreover, the Veteran was not shown to have an inability to establish and maintain effective relationships. Rather, he reported having gotten along well with his parents, girlfriend, and brother, all of whom he resided in the same house. Because he was not working, his father and girlfriend, whom he later married, supported him financially, even his cannabis use. He also reported having friends that he also got along with and even participating in leisure activities, like fishing and playing video games. The Board notes the Veteran’s use of medication and his reports stability therefrom, including reports of May 2011 being the “best month [he’s] had.” The Board is permitted to consider the ameliorative effects of such medication in its evaluation, for it is contemplated by the rating criteria for mental disorders. Jones v. Shinseki, 26 Vet. App. 56 (2012). Given the frequency, nature, and duration of the Veteran’s symptoms, the Board finds that they do not result in occupational and social impairment with deficiencies in most areas. They do not more closely approximate the types of symptoms contemplated by the 70 percent rating, and therefore, a 70 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). The Board notes the August 2011 clinical findings of normal memory and the Veteran’s report of memory loss and his working with SLP and memory improvement strategies. However, no clinician noted that said memory loss was to the point of forgetting his own name or that of his close relative. In fact, throughout this period, his memory was consistently normal. Beginning November 16, 2012, the Board finds that a 70 percent is warranted. On November 16, 2012, the Veteran answered in the affirmative to a series of questions on the VHA Pocket Card Suicide Risk Questions, including “Are you feeling hopeless about the present or future? Have you had thoughts of taking your life?” He indicated having thoughts of taking his life “1 month” ago. He reported no plan to take his life but yes, to ever having had a suicide attempt. Regarding Suicide Risk Warning signs exhibited by the Veteran, the clinician noted “Hopelessness.” The Board notes that thoughts of suicide are contemplated by the 70 percent criteria and can cause occupational and social impairment with deficiencies in most areas. The evidence of record during this period shows that the Veteran’s psychiatric disorder is not more closely described by both total occupational and total social impairment. Mauerhan, 16 Vet. App. at 442-43. The risk of self-harm is contemplated by the 100 percent criteria, which addresses whether one is a persistent danger to himself or others. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Here, the record shows hospitalization in April 2013 and September 2018 for suicide ideation. During the four-time admission in 2019 to the Indianapolis the Indianapolis VAMC psychiatric unit, the clinicians deemed his acute and chronic suicide risk to be low or moderate. The suicidal assessments during this period, have not found the Veteran a high risk for danger to himself or others because of his reality testing ability, positive therapeutic relationships, motivation in receiving treatment, and his seeking treatment. The Board is cognizant of the October 1, 2019 treatment entry that an ED was filed for safety as the Veteran was found impaired by a likely substance-induced psychotic state and was a danger to himself at that time. The Board is also cognizant of the Veteran’s chronic homelessness during this period, his earlier reports of seeing spots and shadows, and God sending him messages, his disheveled appearance and poor hygiene, his six-time hospitalization for suicidal ideation, and his suicide attempt in 2018 via heroin overdose. Nonetheless, the cumulative evidence of record does not show severity enough to cause total occupational and total social impairment. Further, no VA clinician nor examiner has found the Veteran to be a persistent danger of hurting himself or others. They have not deemed the risk current immediate. Rather, it has consistently been low/moderate or no significant risk because of his lack of report of suicide intent or plan, even with his homelessness and drug abuse. During this period, the Veteran reported having a fiancé. He also speaks to his mother on the phone, even though he could not see her for, the family wanted nothing to do with him. Clinicians have noted his positive social/family support, sense of responsibility to family, children in the home, pregnancy, reality testing ability, and positive therapeutic relationship, motivated in treatment, as decreased risks for suicide. As the evidence does not reflect findings of gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, and memory loss for names of close relatives or his own name, the Board finds that neither total nor social impairment is approximated. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). As the most probative evidence of record does not show total and social impairment, the 100 percent rating is not warranted during this period. Given the frequency, nature, and duration of the Veteran’s symptoms, the Board finds that they do not result in total occupational and total social impairment for the period beginning November 16, 2012. They do not more closely approximate the types of symptoms contemplated by the 100 percent rating, and therefore, a 100 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). In sum, the Board finds that the Veteran’s symptoms from his disorder have not more closely approximated the criteria for a rating greater than 50 percent during the period before November 16, 2012. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in occupational and social impairment, with deficiencies in most areas such as work, family, judgment, thinking, or mood. Thus, a 70 percent rating is not warranted before November 16, 2012. Beginning November 16, 2012, the Board finds that the Veteran’s symptoms from his acquired psychiatric disorder have not more closely approximated the criteria for a rating greater than 70 percent during the period beginning November 16, 2012. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in total occupational and total social impairment. Thus, a 100 percent rating is not approximated. II. A TDIU is warranted during the period of November 16, 2012. Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19 (2018); Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran’s education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). Here, with the grant of 70 percent from November 16, 2012, for acquired psychiatric disorder and his 20 percent for a lumbosacral sprain, effective October 29, 2009, the schedular criteria are met. During his November 2011 Board testimony, the Veteran stated that with his psychiatric disorder, he had problems with his boss. He would be told to do something, and if he were not fast enough, they would yell at him, and he would tell them to do it their way, for he was going to do it his way or not all. His last job was at McDonald’s, where he was employed for 2 ½ years until he quit in 2009. During the November 2014 back examination, the examiner determined that the Veteran’s back disability impacted his ability to work. He was unable to bend, twist or do the heavy lifting. The examiner, however, in the November 2014 Mental Disorders DBQ, remarked that the Veteran’s “primary problem is related to depression and anxiety, [and]directly resulting from moderate mood problems are not of a magnitude/severity that would prevent him from working. In his August 2016 dated VA 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he attributed his lack of employment to his acquired psychiatric disorder and back disabilities. The Veteran reported therein, having been under a doctor’s care and/or hospitalized within the past 12 months. He indicated that the date she last worked full-time was April 2009. The date his disability affected full-time employment, and the date he became too disabled to work was in November 2005. (Continued on the next page)   Regarding his schooling, the Veteran indicated having had two years of college and not having had other education and training before becoming too disabled. (Treatment record notes that the Veteran obtained his GED and took six months of college courses in automotive technology, at NADC and Ivory Tech.) The Board notes that in the September 2020 rating decision, the RO granted a TDIU for the Veteran met the schedular criteria on March 25, 2020. Here, the schedular criteria are met with the grant of a 70 percent for his acquired psychiatric disorder, effective November 16, 2012, based on a finding that his disability causes psychological difficulties that render him with occupational and deficiencies in most areas. As such, the Board also finds the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities. Thus, a TDIU beginning November 16, 2012, is, therefore, granted. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.