Citation Nr: 21027407 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-31 147 DATE: May 5, 2021 ORDER For the entire rating period on appeal, a 100 percent rating for major depressive disorder (MDD) with posttraumatic stress disorder (PTSD) is granted. For the entire rating period on appeal, special monthly compensation under 38 U.S.C. 1114(s) is granted. Entitlement to a total disability rating based on individual unemployability is dismissed as moot. FINDINGS OF FACT 1. For the entire initial rating period on appeal, the Veteran's service-connected psychiatric disability more nearly approximates total occupational and social impairment. 2. For the entire rating period on appeal, the Veteran now has a service-connected disability rated as total (MDD and PTSD), and her additionally service-connected disabilities are rated as at least 60 percent disabling. 3. In light of the 100 percent schedular rating for MDD and PTSD for the entire rating period on appeal, there is no longer a case or controversy with respect to the issue of entitlement to a TDIU. CONCLUSIONS OF LAW 1. For the entire rating period on appeal, the criteria for a rating of 100 percent for MDD and PTSD are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Codes 9434, 9411 (2020). 2. For the entire rating period on appeal, the criteria for SMC at the housebound rate are met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. §§ 3.102, 3.350 (2020). 3. The claim for entitlement to a TDIU is dismissed as moot. 38 U.S.C. § 7105; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to October 1989 with additional periods of service in the Army Reserves. This matter comes on appeal before the Board of Veterans' Appeals (Board) from January 2013 and May 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board denied the issues of entitlement to an initial disability rating higher than 50 percent for MDD with PTSD and entitlement to TDIU. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in October 2018, the Court vacated the Board's December 2017 decision based on an October 2018 Joint Motion for Partial Remand. The remaining issues on appeal to the Court were dismissed. The case again came before the Board in January 2019. The Board again denied a rating higher than 50 percent for the MDD with PTSD, denied TDIU on the merits prior to October 23, 2015, and found that TDIU was moot beginning October 23, 2015 by virtue of the Veteran being assigned a total 100 percent disability rating. The Veteran again appealed the Board's decision to the Court. The Court issued an April 2020 memorandum decision, finding the Board's reasons and bases were inadequate. Additionally, the Court found that the Board erred when it determined that a TDIU was moot for the period beginning October 23, 2015. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Shortly before the Court's April 2020 memorandum decision, the RO conducted an additional November 2019 VA psychiatric examination and granted the Veteran a 70 percent rating for the MDD with PTSD, effective October 19, 2018. Thus, the initial rating claim before the Board has now been staged. The record shows that additional evidence was received by VA since the most recent Supplemental Statement of the Case; however, the Board is granting the claims on appeal. As such, the Board finds that there is no prejudice to the Veteran as to those claims. See March 2021 attorney brief (requesting total rating for psychiatric disability and SMC). Disability Rating Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In this case, the Veteran is in receipt of a 50 percent rating prior to October 19, 2018 and is in receipt of a 70 percent disability rating thereafter under Diagnostic Code 9434. Under Diagnostic Code 9434, a 50 percent rating is assigned 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 and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned 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 that is 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. 38 C.F.R. § 4.130. A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. 38 C.F.R. § 4.130. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 ; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. MDD and PTSD The Veteran contends that her psychiatric disability is more severe than what is contemplated by the currently assigned 50 and 70 percent disability evaluations for the entire rating period on appeal. Turning to the relevant evidence of record, a February 2011 VA clinical note from the Veteran's physician, noted that the Veteran was at moderate risk for suicidal behavior. In a December 30, 2013 VA treatment note, the Veteran reported suicidal ideation. During a January 2012 VA examination report, the VA examiner noted that the Veteran's current depression symptoms included frequent crying, anhedonia, low energy, chronic sleep difficulties, psychomotor retardation, and low self-esteem. Other symptoms noted were depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, or effectively, difficulty in establishing and maintaining effective work and social relationships, and persistent delusions or hallucinations. In a November 2014 Statement in Support of Claim, VA Form 21-4138, the Veteran stated that she suffered frequent suicidal thoughts and extreme anxiety. In October 2015, the Veteran was afforded another VA psychiatric examination. The VA examiner noted that the Veteran avoided most social interaction, particularly with most males. The Veteran maintained few friendships and preferred engaging in solitary activities at home. Markedly diminished interest or pleasure in all, or almost all, activities most of the day, nearly every day was denied. Following an objective evaluation, the VA examiner determined that the results of validity testing indicated that the Veteran endorsed a remarkably high frequency of symptoms that were improbable or atypical of individuals with psychiatric or cognitive disorders. Thus, the VA examiner concluded that the Veteran's self-report of symptoms might be of questionable validity. The VA examiner found that the Veteran endorsed partial remission of both posttraumatic and depressive symptomatology during the current evaluation as compared to her January 2012 VA examination. Many of the Veteran's symptoms (e.g., depressed mood, anhedonia, sleep disturbance, intrusive thoughts, and physiological reactions to anxiety) were well-controlled by her current psychotropic medications. The Veteran was afforded another VA psychiatric examination in November 2019. Since 2015, the examiner noted that the Veteran had no significant changes in her life. She remained in her home and had no friends and "no social activities." She was not married and had no family remaining. The Veteran also denied working. Current symptoms included depressed mood, anxiety, suspiciousness, panic attacks occurring more than once a week, mild memory loss, flatten affect, illogical or circumlocutory speech, inability to establish relationships, suicidal ideation, special disorientation, and disorientation to time or place. The Veteran also indicated that she thought about killing herself but did not have current intent or plan. The Veteran stated that these thoughts peak between October to December, as this time frame is associated with a number of losses. The Veteran also submitted a statement in January 2021. At that time, she indicated that she had not worked since 2010. She also reported symptoms of paranoia, suicidal ideation, nightmares, flashbacks, and extreme hypervigilance. She denied having any personal relationships and indicated that she was paranoid, anxious, and uneasy about leaving the house alone. The evidence also includes a March 2021 Vocational Assessment Report. After a review of the claims file and an interview with the Veteran, the Vocational expert indicated that the Veteran's psychiatric disabilities resulted in the Veteran's inability to work since at least April 2011 to the present. Upon review of all evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's MDD and PTSD results in total occupational and social impairment, warranting a 100 percent schedular rating. As discussed in the VA treatment records and VA psychiatric examinations, the Veteran's psychiatric disability has manifested symptoms of depressed mood, anxiety, suspiciousness, panic attacks, mild memory loss, disturbances of motivation and mood, inability to establishing and maintaining effective work and social relationships, suicidal ideation, and spatial disorientation. See 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran has been found to have little or no social interactions and has reported avoiding social settings and leisurely pursuits. Further, the Veteran has remained unemployed throughout the rating period on appeal. The March 2021 Vocational Assessment Report specifically noted that the Veteran's psychiatric disabilities prevented her from working in substantially gainful employment. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that a rating of 100 percent for MDD and PTSD is warranted for the entire rating period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TDIU and SMC Considerations The Board recognizes that the Court has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no "duplicate counting of disabilities." Bradley, 22 Vet. App. at 293. Here, the Board notes that as a result of this decision, the Veteran's service-connected psychiatric disability is rated as 100 percent disabling. Thus, for SMC purposes, this disability satisfied the requirement of a "service-connected disability rated as total." See Buie v. Shinseki, 24 Vet. App. 242, 251 (2011); see also Bradley v. Peake, 22 Vet. App. 280, 293 (2008). Because the Veteran has a single service-connected disability rated as total (i.e., MDD with PTSD), and has additional service-connected disabilities that are independently rated as at least 60 percent disabling, the criteria for SMC at the housebound rate have been met for the entire rating period on appeal. The Board further finds that any claim of entitlement to a TDIU is moot for the appeal period. In this regard, the Veteran has already been granted a 100 percent disability rating for her psychiatric disability and has also been granted an award SMC based on additional service-connected disabilities independently ratable at 60 percent. As the Veteran has already been awarded SMC and therefore would have no need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C. § 1114 (s), the holding in Bradley is not applicable in this case. Therefore, the TDIU claim is moot for the entire rating period on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Harper, 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.