Citation Nr: 21020970 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-32 566 DATE: April 8, 2021 ORDER Entitlement to an increased, 100 percent evaluation prior to January 6, 2021, for major depressive disorder (MDD) is granted. Entitlement to a total disability rating based on individual unemployability is dismissed as moot. Entitlement to special month compensation (SMC) at the statutory housebound rate from April 18, 2011, is granted FINDINGS OF FACT 1. Throughout the appeal period, the Veterans disability has most nearly approximated a total social and occupational impairment. 2. The Veteran is in receipt of a 100 percent schedular rating for MDD for the entirety of the appellate period, and so the question of entitlement to TDIU is moot. 3. From April 18, 2011, the Veteran has a single service-connected disability, MDD rated 100 percent disabling, together with additional service-connected disabilities having a combined rating of at least 60 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 100 percent disability rating for MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. The issue of entitlement to TDIU is moot. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. 3. The criteria for SMC at the statutory housebound rate, from April 18, 2011, have been met. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. §§ 3.102, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from April 1966 to May 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision by a regional office (RO) of the United States Department of Veterans Affairs (VA) which continued a 30 percent evaluation for an acquired psychiatric disorder, then listed as an adjustment disorder with mixed anxiety and depression. During the pendency of the appeal, in a July 2014 rating decision, the RO granted an increased 50 percent rating for the psychiatric disorder, now described as MDD, effective April 18, 2011, the date fo receipt of the claim for increase. In a July 2018 decision, the Board remanded the question of evaluation of MDD for issuance of a supplemental statement of the case. The Board also found the issue of TDIU was properly inferred as part of the claim for increased rating, and remanded such for proper development and initial consideration. Rice v. Shinseki, 22 Vet. App. 447 (2009). MDD Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10V et. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran’s MDD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Code 9434. A 50 percent disability rating is warranted when there is an 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is warranted for 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); inability to establish and maintain effective relationships. Id. Finally, a 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. VA treatment records from November 2010 showed that the Veteran was having panic attacks, so severe in nature, that he would “space out” for hours and not remember anything that happened. In addition to the severe panic attacks, the Veteran’s psychiatrist noted anxiety and dissociative symptoms. In a May 2011 psychiatry note, the Veteran’s psychiatrist indicated that the Veteran was having more frequent and longer lasting spells of severe anxiety accompanied by nightmares. The Veteran also reported that he felt others look at him and perceive him as a “red headed clown with a big nose.” The Veteran was given a VA examination in February 2012. The examiner indicated diagnoses of a personality disorder, not otherwise specified (with schizoid and paranoid features) and an adjustment disorder with anxiety and depressed mood. In this exam, the examiner indicated that they could differentiate which symptoms were attributable to each diagnosis. The Veteran’s personality disorder symptoms included no desire for close relationships, even with family members, choosing solitary activities, having no close friends, and no interpersonal or physical relationship with his girlfriend. The relationship between the Veteran and his girlfriend was described as simply cohabitation. His adjustment disorder symptoms identified by the examiner included social discomfort, poor sleep, anhedonia, depressed mood, nightmares, and generally being shaky or nervous. After listing the Veteran’s various symptoms, the examiner opined that the Veteran’s social difficulties were more due to his schizoid and personality symptoms rather than only to his depression and anxiety. The examiner further opined that the Veteran’s claims of hearing voices of people laughing at him represented a possible psychosis or extreme personality disorder symptom. The auditory hallucinations, which the Veteran described as voices telling him to look around, caused the Veteran to persistently worry that he has a big nose and yellow hair. In addition to auditory hallucinations, the Veteran indicated the he talked to his deceased father and saw other people that are not actually present. The February 2012 examination also shed light on the condition of the Veteran’s memory. The examiner specifically noted that the Veteran had seen his psychiatrist approximately 18 times since 2002, but did not know who she was when asked. The examiner had to describe the psychiatrist’s physical appearance and repeat her name multiple times before the Veteran indicated that he remembered who she was. He also had no recollection of working with another psychologist from 2004 to 2006. Following the examination, the Veteran experienced a severed panic attack evidenced by the Veteran seeking psychological help. VA treatment records from August 2012 indicated the continuation of the Veteran’s auditory hallucinations. He indicated that he heard passersby whispering about him and making derogatory remarks as if he looks like Bozo the Clown with “a big nose and red hair.” The Veteran was given another VA examination in October 2016. The examiner indicated diagnoses of MDD with psychotic features and schizoid personality disorder. Similar to the February 2012 examiner, the October 2016 examiner differentiated which symptoms were associated with each diagnosis. The Veteran’s MDD with psychotic features manifested by conversations with his deceased father, hearing music that was not actually playing, difficulty concentrating, social discomfort, nightmares, poor sleep, anhedonia, and depressed mood. His schizoid personality disorder was manifested by no desire for close relationships, even with family members, choosing solitary activities, decreased pleasure in activities including sex, having no close friends, cohabitation with no interpersonal or physical relationship, and difficulty relating to others. Although the examiner opined that the symptoms could be differentiated, he stated that the occupational and social impact of each disorder could not be differentiated because the diagnostic profile was complex resulting in various symptoms overlapping substantially. The Veteran told the examiner that he could not hold concentration to the point that he was unable to watch the news because he “gets lost.” Additionally noted was his sincere contention that he saw his deceased father and talked to him all the time. A third VA mental disorders examination was conducted in January 2021. The examiner noted diagnoses of MDD with psychotic features and schizoid personality disorder. This examiner specifically noted that the two diagnoses are not independent of each other and result from the same etiology. Regarding differentiating levels of occupation and social impairment, the examiner opined that the symptoms of the disorders and their resulting impairments overlap making in unable to determine their individual impact. The Veteran, once again, confirmed auditory and visual hallucinations as well impaired memory. When asked by the examiner, the Veteran was unable to remember the names and ages of two of his children. Impaired judgement, insight, and thought process were also noted during the examination. While the February 2012 examiner opined that levels of social and occupational impairment could be differentiated from each diagnosis, the October 2016 and January 2021 examiner opined that the diagnoses could not be differentiated due to the complex overlapping of symptomatology. Importantly, even while symptoms were differentiated, the impacts of them were indicated to overlap. The Board finds that the Veteran is entitled to a 100 percent rating for his MDD for the entirety of the appeal period for total occupational and social impairment. For the entire appeal period, the Veteran has been shown to have significant symptoms of anxiety, depression, unemployment, and inability to establish and maintain effective relationships. Specifically, the Veteran has consistently experienced chronic severe depression, anxiety, suspiciousness, disturbances in mood and motivation, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, and persistent auditory and visual hallucinations. A clear existence of distorted reality has existed during the entire period on appeal based on VA treatment records, VA examinations, and lay contentions of the Veteran. The Veteran has consistently displayed auditory and visual hallucinations that impact the way he lives. He prefers isolation over socialization due to the auditory hallucinations he has concerning strangers’ opinions of him. Sightings of and discussions with his deceased father represent a gross impairment in thought processes and communication. During severe panic attacks or periods of anxiety, the Veteran becomes disoriented and does not remember what happened. The Veteran requires assistance from his girlfriend, with whom he has no interpersonal or physical relationship, to maintain personal hygiene as well as attempt any degree of social interaction. In short, the evidence in the aggregate weighs in favor of finding that the severity, frequency, and duration of the Veteran’s symptoms result in the level of impairment required for a higher, 100 percent schedular rating. TDIU A Veteran is presumed to be seeking the highest possible evaluation for a service-connected disability. This includes, as here, a claim for TDIU when, in a claim for increase, there is evidence of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the above grant of a schedular 100 percent rating represents an award of the maximum level of benefit for the entirety of the appeal period. Consideration of entitlement to TDIU is therefore moot; this includes the need to address entitlement to ancillary benefits, discussed in the section below. SMC The issue of entitlement to SMC at the statutory housebound rate under the provisions of 38 U.S.C. § 1114(s) has been raised by the record, and the Board must consider entitlement to SMC when raised. See Akles v. Derwinski, 1 Vet. App. 118 (1991). VA’s duty to maximize a claimant’s benefits includes consideration of whether disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). SMC at the statutory housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent and 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 system. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Court has determined entitlement to TDIU for a single disability constitutes a 100 percent rating for a single service-connected disability under 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 292 (2008). As is noted above, the Board has awarded a 100 percent schedular rating for the Veteran’s service-connected MDD, and so there is no need to consider TDIU to establish SMC entitlement. In addition to the totally disabling psychiatric disorder, the Veteran is service-connected for hidradenitis suppurativa at 60 percent from April 18, 2011. This covers the entirety of the appeal period and satisfies the criteria for statutory housebound status. The Veteran also has additional disabilities to raise the combined “other” rating above 60 percent, but it is not necessary to discuss such. These independent service-connected disabilities, involving different anatomical segments and bodily systems from those involved in the Veterans MDD, create a combined rating of at least 60 percent from April 18, 2011 onward. Accordingly, both elements of entitlement to SMC at the housebound (s) rate have been shown from April 18, 2011. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Nolan, Shane D. 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.