Citation Nr: 21016202 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 17-50 231A DATE: March 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for chondromalacia right knee, status post meniscus surgery, and degenerative spur formation is denied. Entitlement to a rating in excess of 10 percent for chondromalacia left knee and degenerative spur formation is denied. A separate 20 percent rating for a right knee repaired meniscal tear manifested by frequent joint pain, locking, and effusion is granted, for the period from August 6, 2020, subject to the regulations pertinent to the disbursement of monetary funds. Entitlement to a 70 percent rating, but no higher, for service-connected posttraumatic stress disorder (PTSD) is granted, subject to the regulations pertinent to the disbursement of monetary funds. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s right knee disability has not manifested in limitation of flexion to even 60 degrees or extension limited to even 5 degrees, instability or subluxation. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s left knee disability has not manifested limitation of flexion to even 60 degrees or extension limited to even 5 degrees, dislocated semilunar cartilage, instability or subluxation. 3. The evidence demonstrates that the Veteran's service-connected right knee disability for the period from August 6, 2020, but no earlier, was manifested by symptoms of a repaired meniscal tear with frequent joint pain, locking, and effusion. 4. For the entire period on appeal, the Veteran’s PTSD has more nearly approximated occupational and social impairment with reduced reliability and productivity in most areas, such as work, school, family, relations, judgment, thinking and/or mood, but not total occupational and social impairment. 5. Throughout the period on appeal, the Veteran’s service-connection PTSD alone, prevented him from obtaining and sustaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5260. 3. The criteria for a separate 20 percent rating for a right knee meniscal disability manifested by frequent joint pain, locking, and effusion for the period from August 9, 2020, but no earlier, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5258. 4. For the entire period on appeal, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, DC (9411). 5. The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1970 to July 1973 and from August 1975 to August 1983. The Veteran and his spouse, H.U., testified before the undersigned Veterans Law Judge in a May 2019 Board Videoconference Hearing. A transcript of the hearing is of record. While pending completion of the Remand, the RO granted service connection for degenerative arthritis of the spine in an October 2020 rating decision. In a December 2020 rating decision, service connection was granted for renal cell carcinoma, right lung cancer, thyroid cancer, and surgical scars from a hemithyroidectomy and nephrectomy. Special monthly compensation housebound benefits were also granted from March 14, 2016 as a result of the Veteran’s lung cancer. The grants of service connection constitute a full grant of the benefits sought on appeal. Those claims are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08(1994). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119(1999); Hart v. Mansfield, 21 Vet. App. 505(2007). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. 1. Entitlement to a rating in excess of 10 percent for chondromalacia right knee, status post meniscus surgery, and degenerative spur formation. 2. Entitlement to a rating in excess of 10 percent for chondromalacia left knee and degenerative spur formation. The Veteran contends that he is entitled to a higher rating for his service-connected right and left knee disabilities. He filed a claim for increased rating on March 14, 2016. The relevant period on appeal is from one year prior to the date of claim, here March 14, 2015. The Veteran has been bilaterally rated under DC 5620 for the entire period on appeal. This code was not impacted by the amendment. Under DC 5260, a noncompensable rating is warranted when flexion is actually or functionally limited to 60 degrees. To receive a rating of 10 percent, limitation of flexion of the leg must be actually or functionally limited to 45 degrees. To receive a rating of 20 percent, limitation of flexion of the leg must be actually or functionally limited to 30 degrees. See 38 C.F.R. § 4.71a, DC 5260. DC 5621 is associated with extension. This code was not impacted by the addendum. Under 5261, a noncompensable rating is warranted when extension is actually or functionally limited to 5 degrees. A 10 percent rating is warranted when limitation of extension is to 10 degrees. A 20 percent rating is warranted when limitation of extension is to 15 degrees. 38 C.F.R. § 4.71a, DC 5261. For the relevant period on appeal, the Veteran been rated under DC 5260 for his right and left knee disabilities. The Veteran’s individual 10 percent ratings are based on objective evidence of painful motion without compensable loss of range of motion (ROM). Following consideration of the record, a rating in excess of 10 percent is not warranted for his loss of ROM. Turning to the record, on May 2016 VA examination, the Veteran was diagnosed as having right knee meniscal tear, right knee degenerative arthritis, and bilateral chondromalacia. The Veteran reported constant knee pain. He reported aching and swelling which rendered his knees painful to the touch. In describing flares, the Veteran reported an inability to sit for protracted periods making it difficult to drive or sit in a car or truck. He denied functional loss or functional impairment of the joint or extremity with repeated use over time. ROM was right knee flexion 0 to 115 degrees and extension 115 to 0 degrees and left knee flexion 0 to 120 degrees and extension 120 to 0 degrees. Pain was present in flexion but did not result in/cause functional loss. Pain was not present in weight bearing. There was objective evidence of crepitus as well as localized tenderness or pain on palpation at “+ttp medial knee.” There was no change in ROM following repetitive use testing. The examiner was unable to state without resorting to mere speculation whether the Veteran suffered from pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or with a flare. Examination was negative for semilunar cartilage conditions, recurrent patellar dislocation, atrophy, ankylosis recurrent subluxation, history of effusion, or lateral instability. Muscle strength and joint stability were normal bilaterally. The Veteran used a cane constantly as a result of knee pain, especially his right knee. Functional impairment was the Veteran requiring frequent breaks/position changes for sedentary tasks as well as weight bearing tasks being limited by pain. September 2017 VA examination mirrored the above, except for the following: diagnoses was bilateral chondromalacia with bilateral knee degenerative spur formation and right knee status post meniscus surgery. Symptoms were swelling in the left knee, worse in the evenings, and pain in the bilateral knees to a point where he occasionally needed crutches. Flares ups were severe in the left knee and moderate in the right knee. Flare ups occurred every other week and lasted 3 days. The Veteran did not report functional loss or functional impairment of either knee. Right knee ROM was 0 to 130 and 130 to 0. There was tenderness present in the lateral joint line. The examiner noted no crepitus, and no pain during ROM but pain with weight bearing. Left knee ROM was 0 to 115 and 115 to 0. Pain was noted on exam, but not considered to result in/cause functional loss. Pain was present in flexion, on the lateral joint line, with weight bearing, non-weight bearing, and passive motion. ROMs were considered normal for the Veteran’s body habitus/age/of no clinical significance. ROMs remained unchanged following repetition. The Veteran reported regular use of a brace for his chondromalacia. Functional impact was 0-1 week of lost work time in the last 12 months, and requiring crutches for ambulation during flare ups. June 2018 VA examination diagnoses were bilateral knee meniscal tears, joint osteoarthritis, right MCL tear repair, and chondromalacia. The findings of the 2018 examination mirrored that of the 2017 examination except for the following: left knee flares were described as an achy sensation waking the Veteran up in the middle of the night rated 1-10/10. The Veteran reported taking morphine sometimes for pain but being unable to get comfortable. Right knee flares were achy sensation and sharp pain in the knee 8/10 in severity. He reported at times being unable to walk on the right knee or drive. ROM was full bilaterally, but pain was present throughout. Pain was not found to result in/cause functional loss. There was no localized tenderness. ROM did not change with repetition. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time or with a flare. Stiffness was noted as an additional contributing factor of disability. The use of a cane was noted as constant for his bilateral knees. No functional impact was found. No pain was found on passive ROM or non-weight bearing. On July 2019 Board hearing, the Veteran reported worsening in his conditions due to overuse. He also reported experiencing locking of his right knee and pain bilaterally. An August 6, 2020 VA examination mirrored previous examinations except for the following: the Veteran reported chronic bilateral knee pain worsened by changes in weather and overexertion. He reported a functional loss or impairment of being unable to walk or stand for prolonged periods. ROM flexion 0 to 90 bilaterally. Extension was normal at zero degrees bilaterally. Pain was present in all ROMs but did not contribute to functional loss. Pain was present with weight bearing and crepitus. There was no change following repetition. Pain and weakness did significantly limit functional ability with repeated use over a period of time or with a flare. Bilateral ROM was estimated flexion 0 to 70 and extension 70 to 0 bilaterally. The right knee was positive for frequent episodes of joint locking, pain, and effusion, but without meniscal dislocation. A cane use was explained as needed for back and knee pain. Examination was negative for objective evidence of pain on non-weight bearing bilaterally. Passive and active ROM were the same. Functional impact was an inability to walk or stand for prolonged periods. In an associated opinion, the examiner confirmed the Veterans suffers from arthritis, pain, crepitus, and decreased ROM. The examiner clarified that the Veteran’s decreased ROM was a marker for the severity of his condition but did not cause a functional deficit. The examiner also specified that the Veteran’s arthritis associated pain caused him to be unable to walk or stand for long periods. Treatment medical records for the period on appeal do not document ROM measurements worse than above. Records are also negative for any findings or reports of effusion or locking. The contrary is shown. Records consistently document no effusion. Records are also negative for symptomatology not included above. As an initial matter, the Veteran’s left and right knee disabilities have not manifested in compensable loss in his ROM on either flexion or extension. A compensable evaluation under 38 C.F.R. § 4.71a, DC 5260 requires flexion limited to 45 degrees, and an evaluation under 38 C.F.R. § 4.71, DC 5261 requires extension limited to 10 degrees. In light of the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent under DC 5260. Such findings also do not support entitlement to a separate compensable rating under DC 5261. An adequate discussion of functional loss includes consideration of manifest functional loss during flare-ups. See Mitchell, 25 Vet. App. 32. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because VA regulations under 38C.F.R. §3.344 (a) and 38C.F.R. §4.1 address the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. In that regard, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. There are no reports of exacerbation or flare-ups that are quantifiable or of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell and the provision of 38 C.F.R. § 4.1 and 38 C.F.R. § 3.344 (a) regarding stabilization of ratings. To the contrary, even considering the quantifiable flares up they never resulted in ROM in excess of what is necessary for even a compensable rating.   Moreover, while the Veteran has reported constant knee pain and painful flare-ups, there is no indication from the record that he has more limitation of motion than that shown at his VA examinations of record during flare-ups. The additional limitation that he experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiner when determining the Veteran’s range of motion and was further considered by the Board. 38 C.F.R. § 4.40, 4.45. Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in his knees with regard to flexion than that noted above. In reaching this conclusion, the Board, again, acknowledges the Veteran’s competent lay reports of symptoms and that there was, at times, functional loss due to pain and the associated use of a cane, crutches, and knee brace. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disabilities has been provided by VA medical professionals who have examined him. The medical findings adequately address the criteria under which the disability is evaluated and clearly demonstrate that the degree of impairment over the period at issue. As stated, even considering the Veteran’s lay reports of symptoms, the record is devoid of competent evidence, supporting his conditions more nearly approximating a rating in excess of 10 percent. The Board accords these medical professional findings greater weight than the Veteran’s complaints as to symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Therefore, the claims for ratings in excess of 10 percent for the right and left knee disabilities must, for the above reasons, be denied. The Board has also considered the applicability of other DC ratings pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In the instant case, there is no evidence of ankylosis of the knees, impairment of the tibia and fibula, removal of semilunar cartilage, or genu recurvatum such as to warrant consideration for separate ratings under the old or revised code. 38 C.F.R. § 4.71a, DCs 5256, 5259, 5262, 5263. As such separate ratings are not warranted under this criterion. As to instability/subluxation, the Board acknowledges the Veteran used a variety of assistive devices, throughout the appeal, to include a cane, crutches, and brace. There are specific medical tests that are designed to reveal instability of the joints. Examination reports were consistently negative for instability and accorded the Veteran’s use of assistive devices as to his knee and back pain. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. The testing results are also given more probative weight than the Veteran’s lay statements. While the Veteran may experience a feeling that his knee may give way or is unstable, if subluxation or instability were present, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. Separate compensable ratings are not warranted for instability and/or subluxation. 38 C.F.R. § 4.71a, DCs 5257. That said, the Board finds that the Veteran is entitled to a separate compensable rating under 5258 for his right knee. DC 5258 pertains to a dislocated (or torn) meniscus and provides for a 20 percent rating based on frequent symptoms of locking, pain, and effusion into the joint. The Veteran is service connected for, and has a history of, surgery to repair a right knee meniscal tear in 2002. As a result, 5258 is applicable. Additionally, the record supports entitlement to a 20 percent rating. Per the August 6, 2020 VA examiner, the Veteran suffers from frequent joint effusion, locking, and pain as a result of his meniscal condition. In an addendum opinion, the same examiner also clarified that the Veteran suffers from separate arthritic pain which causes his above rated loss of ROM. Given the above, and resolving all reasonable doubt in his favor, the Board will assign a separate 20 percent rating under DC 5258 from August 6, 2020. A rating is not warranted prior to this period, as the record is negative for a medical finding, or lay assertions, that the Veteran suffered frequent join effusion, locking, and pain. The claims file is also negative for evidence of a left knee meniscal condition resulting in compensable symptomatology. In summary, rating in excess of 10 percent for the Veteran’s right or left knee limited flexion disabilities is not warranted for any portion of the period on appeal. However, a separate 20 percent rating under the criteria for DC 5258 is granted from August 6, 2020, and no earlier. 3. Entitlement to a rating in excess of 50 percent for PTSD. 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 list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). 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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula “indicates that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas.” A 70 percent rating is prescribed when there is evidence of 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 work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran seeks the highest possible rating for PTSD. He filed a claim for increased rating on March 14, 2016. The relevant period on appeal is from one year prior to that date of claim for increased rating, here March 14, 2015. Throughout the period on appeal the Veteran has been rated 50 percent disabled. Turning to the record, the Veteran underwent VA examination in May 2016. On examination diagnosis was PTSD. Occupational and social impairment was noted as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. At the time of examination, the Veteran reported being married to his wife for 46 years. He reported maintaining a relationship with his children and traveling to visit them. The Veteran and his spouse reported worsening in his PTSD symptoms since his cancer. They specified suffering from daily night sweats, irritability, hypervigilance, road rage, and insomnia. The Veteran reported being unable to go to restaurants because of his inability to have his back to people. He also reported difficulties driving due to an inability to have people behind him. He denied being in any social groups. Symptoms noted were anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including a work or a worklike setting. Mental examination revealed normal speech, orientation, and thought processing. The Veteran was negative for hallucinations, obsessions, phobias, hallucinations or illusion. Insight was good. Suicidal and homicidal ideations were denied at the time of examinations. Remote memory was good. As to employment, the Veteran and his spouse reported worsening of PTSD following cancer. They specified that his PTSD caused him to miss work and/or an overall difficulty in maintaining employment. September 2017 VA examination, diagnosis was PTSD. Symptoms were noted to result in occupational and social impairment with reduced reliability and productivity. The Veteran reported that his marriage remained strong, but challenging due to the stress of his psychiatric and physical disabilities. He reported maintaining a relationship with his youngest daughter but having a strained relationship with his oldest daughter for reasons unknown. He reported maintaining relationships with his former coworkers at the golf club. Symptoms on examination were depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including in a work or a work like setting. Behavior observations were limited but included the Veteran displaying great distress and tearfulness. The examiner did not elicit testimony as to the Veteran’s feelings of suicidal or homicidal ideation. On June 2018 VA examination, diagnoses were PTSD and adjustment disorder. Adjustment disorder, per the VA examiner, was caused by the Veteran’s now service-connected cancers. Symptoms associated with PTSD were nightmares, daily flashbacks, physical reactivity after exposure to traumatic reminders, unwanted upsetting memories of combat 2-3x per week, avoidance of trauma-related thoughts or feelings, or reminders, overly negative thoughts and assumptions about oneself or the world, exaggerated blame of self in relation to combat, risky or destructive behavior, hypervigilance, and daily heightened startle. Adjustment disorder symptoms were sense of being used, suicidal ideation, and low motivation. Symptoms where the origin could not be deduced, were decreased interest in activities, feeling isolated, irritability or aggression, difficulty concentrating, poor sleep, and depressed mood. The Veteran’s symptoms were opined to cause occupational and social impairment with reduced reliability and productivity. On examination, the Veteran confirmed a strong relationship with his wife though at times snapping at her due to PTSD/adjustment disorder related irritability. He reported on-going estrangement with his oldest daughter. He described his social life as pretty good and social network as including: family, old-coworkers, and old neighbors. He reported seeing his friends once a month at old jobsite (golf course). The Veteran reported regular suicidal ideation associated with his cancer treatments. He reported considering allowing himself to die by non-adherence to his medication regiment but being precluded from doing so as his wife manages his medication. Behavioral observations revealed the Veteran was alert and oriented, with normal appearance. Although his spouse reported marked forgetfulness, his cognition was deemed intact. Examination was negative for thought disorder or psychosis, and his judgment and insight were deemed average. At the time of examination, suicidal ideation was deemed passive. On July 2019 Board hearing, the Veteran reported uncontrolled anger at the smallest offense and wanting to physically harm others, by chocking them, when they annoy him. He reported being told by his former employer that he was too aggressive and reported repeatedly “going off” on other employees. The Veteran spouse, H.U., confirmed the above. She also emphasized her fear of his unpredictable anger and his lack of control. She cited to repeat incidences of road rage. She also indicated that his forgetfulness is severe as he leaves the front door open and unlocked. Treatment medical records contemporaneous to the period on appeal reflect the aforementioned symptomatology as well as the Veteran’s reports of suicidal ideations. However, they do not contain evidence of symptomatology associated with a 100 percent rating. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Consistent with Bankhead, the record discloses multiple instances where suicidal ideation was reported and/or discussed. The Veteran is also shown throughout the appeal to have difficulty adapting to stressful circumstances and having impaired judgment. Moreover, he has demonstrated difficulty, and at times an inability, to control his anger/irritability as evidenced by medical records and his spouse’s credible reports. He has also struggled with anxiety, weekly panic attacks, depression, impaired memory, and sleep disturbances. Although the VA examiners did not indicate symptomatology equivalent to a 70 percent rating, the totality of the record reflects the Veteran suffered from rapidly changing symptomatology which consistently impacted employment throughout the period on appeal and reduced his ability to consistently and appropriately function socially. A 70 percent rating is warranted for the entire period on appeal. The criteria for a 100 percent rating are not demonstrated by the evidence of record. The Veteran’s PTSD did not manifest in total social impairment at any time period. Throughout the appeal, the Veteran maintained social relationships, albeit at times strained, with his family, friends, and at least one of his children. Such in and of itself belies the notion of total social impairment. Additionally, the record is negative for 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. 4. Entitlement to TDIU. A will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a).   VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). SMC benefits are to be accorded when a Veteran becomes eligible without need for a separate claim. SMC is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has 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, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The Veteran requests the assignment of a TDIU. In relevant part, the Veteran asserts that he is currently only in receipt of a temporary 100 percent rating which is insufficient. Per the Veteran, the temporariness of his current rating does not 1) afford him the maximum benefit possible or 2) reflect the severe permanence of his overall disability picture. As a result, he requests the Board afford him a TDIU. From the outset, the Board notes that the issue of entitlement to a TDIU stems from a standalone claim filed on March 14, 2016. This claim for TDIU was properly perfected to the Board and as a result jurisdiction is established. His claim is also part and parcel to his increased rating claims. See, Rice v. Shinseki, 22 Vet. App. 447 (2009). That said, the Board acknowledges the Court’s holding in Holland v. Brown that a 100 percent schedular disability rating means that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994). The Board also recognizes that, typically, in such instances a request for TDIU is moot. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, the Veteran has repeatedly requested to continue his claim for TDIU, and the Board finds his case is dissimilar to Herlehy such that jurisdiction remains. The Veteran’s 100 percent rating is predicated on DC 6819 criteria. DC 6819 affords, a 100 percent rating only when active cancer, here lung cancer, is demonstrated and/or for six months after the treatment of active cancer. Given the structure of the code, the Board agrees that the Veteran’s 100 percent rating is essentially temporary. This determination is supported by the record confirming that the Veteran’s cancer condition is deemed temporary and subject to change as early as June 2021 per recent RO correspondence. Moreover, the temporary nature of cancer 100 percent ratings is also evidenced by the Veteran’s thyroid and kidney cancer ratings, which were reduced from individual 100 ratings to 30 percent disabling or noncompensable, respectively, during the period on appeal. That said, here, the Board finds awarding a TDIU rating will afford a higher benefit to the Veteran as it will continue his total disability rating should his cancer resolve. Said more simply, awarding the Veteran the below grant of TDIU only assists in assuring that he continues to receive the maximum benefits allowable notwithstanding the status of his cancer. See AB v. Brown, 6 Vet. App. 35, 39 (1993). As entitlement to a greater benefit remains possible, the issue of TDIU is not moot and the Board retains jurisdiction. Turning to the record, employment records confirm that he last worked full-time in November 2015. The Veteran is in receipt of his GED. The Board has now awarded the Veteran with a 70 percent rating for his PTSD for the entire period on appeal. Thus, the Veteran has met the schedular TDIU criteria for eligibility under 38 C.F.R. § 4.16 (a) for the entire period on appeal. What remains is evidence of total unemployability. The Board finds the evidence is persuasive that the Veteran has been incapable of substantially gainful employment due to his service-connected PTSD throughout the appeal. First, as stated above, the Veteran has difficulty with even being in a work like setting during the appeal. Second, the Veteran suffers from weekly panic attacks as well as daily unpredictable periods of low motivation, depression, irritability, and anger. The record clearly reflects that the Veteran is only able to function on his terms and not when pressured or monitored. Finally, the Veteran testified to suffering from decreased mental acuity/memory as a result of his psychiatric impairments. The Board finds these collective symptoms to be severe enough to preclude the Veteran from obtaining and maintaining substantially gainful employment in any field. Moreover, the Board finds it highly unlikely that the Veteran would be able to find substantially gainful employment when pairing his unpredictably symptomatology with his extremely limited employment and educational history. Acknowledgment is given to the record containing evidence that does not support TDIU; however, the Board finds it highly likely that the Veteran’s psychological impairments, and his irritability, would be a consistent hinderance to his ability to concentrate and thrive in a work environment. His examinations and clinical records are suggestive that his symptoms would only worsen under a regulated environment, and he suffers difficulty adapting to stressful circumstances even in work like settings. These combined psychiatric symptoms likely precluded employability notwithstanding his education. Therefore, entitlement to a TDIU, based solely on the impairments associated with service-connected PTSD, is warranted for the entire period on appeal. In awarding TDIU predicated solely on the Veteran’s PTSD, the Board also ensures that the Veteran remains eligible for SMC benefits. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.