Citation Nr: 21028001 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 18-23 152A DATE: May 10, 2021 ORDER A 100 percent rating for major depressive disorder, effective September 4, 2018, is granted. A rating higher than 50 percent prior to September 4, 2018, is denied. Special monthly compensation (SMC) at the "s" rate, effective September 4, 2018, is granted. FINDINGS OF FACT 1. The Veteran's major depressive disorder (MDD) manifested with total occupational and social impairment starting 90 days prior to a December 4, 2018, VA treatment appointment, or by September 4, 2018. It is not factually ascertainable that he had total impairment prior to that date. For the period prior to September 4, 2018, his MDD manifested with occupational and social impairment with reduced reliability and productivity. 2. As of this decision, the Veteran's MDD is rated 100 percent disabling effective September 4, 2018. His other service-connected disabilities combine to 60 percent or higher as of September 4, 2018. CONCLUSIONS OF LAW 1. The criteria are met for a 100 percent rating for MDD effective from September 4, 2018. The criteria are not met for a rating higher than 50 percent prior to September 4, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400(o), 4.130, DC 9434. 2. The criteria are met for SMC at the "s" rate starting from September 4, 2018. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1960 to January 1963. This appeal is from a December 2016 rating decision. In January 2020, the Board granted a 100 percent rating for MDD effective December 4, 2018, and denied a rating higher than 50 percent for the period prior to that day. The Board also awarded SMC effective from December 4, 2018. The Veteran appealed the denial of a higher rating for MDD, and the denial of SMC, to the U.S. Court of Appeals for Veterans Claims. In December 2020, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated the denials and remanded the claims to the Board for additional consideration. Increased Rating 1. A 100 percent rating for MDD, effective September 4, 2018, is granted. A rating higher than 50 percent prior to September 4, 2018, is denied. The criteria for evaluating MDD are found at 38 C.F.R. § 4.130, DC 9434. The Veteran's MDD is initially rated as 50 percent disabling, with a staged rating to 100 percent effective from December 4, 2018. He has appealed for a higher initial rating. Further, although the original issue on appeal is entitlement to a higher rating for MDD for the period prior to December 4, 2018, the Board notes that the JMPR specifically directed the Board to consider whether an earlier effective date for the grant of 100 percent was warranted. Under DC 9434, a 50 percent evaluation is warranted where there is 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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, own occupation, or own name. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). When evaluating a mental disorder, one must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). The issues are whether a rating higher than 50 percent is warranted at any time starting from August 10, 2010, and whether an earlier effective date for his 100 percent rating is warranted. After review of the record, the Board does not find that the record shows impairment with deficiencies in most areas or total impairment until September 4, 2018, which is 90 days prior to the effective date of his 100 percent rating. On December 4, 2018, the Veteran reported that his depression had increased in severity, which was previously used by the Board to assign the effective date of the increase. However, he reported that the increase had started about 90 days prior. He attributed it to the recent deaths of his wife and granddaughter. Prior to this, the Veteran had a November 2018 mental health screening, which noted that he had recently experienced losses that had made his symptoms worse. Prior to that, the record shows depression, but without discussion of severity. As the Veteran did not have ongoing treatment, the Board relies on the estimate provided in December 2018 that his symptoms had increased starting approximately 90 days earlier, which would be September 4, 2018. It is reasonable to conclude that grief from losing his wife and granddaughter would exacerbate his symptoms and lead to an increase. The Board resolves doubt in the Veteran's favor, and find that it is factually ascertainable that his increase in symptoms occurred September 4, 2018, 90 days prior to the assigned December 2018 effective date. The record does not show that his symptoms caused total impairment, or impairment with deficiencies in most areas, prior to September 4, 2018. The record shows that he was married to his wife for over 50 years, and had close relationships with his children and grandchildren. The record shows the Veteran making an effort to attend activities, for example, in July and November 2015, church with his wife, but that he was not able to because of pain. In November 2015, he reported that he was looking for social activities and considering attending Bible study. In September 2015, he reported that he did spend time in his day socializing with friends. This evidence shows he did not have deficiencies in the area of family relationships during this time period. The record does not show deficiencies in thinking during the time period. He was not shown to have impaired thought processes, and instead they were consistently logical and coherent. His thought processes have been assessed as linear, and there is no evidence of delusions or hallucinations. The record does not show that his symptoms caused deficiencies in judgment, which was consistently assessed as fair to good. The record does not show the Veteran has had impaired judgment during the period on appeal. The record does not show that his symptoms would cause deficiencies in work or school. Although he did have sleep impairment, he was not noted to have trouble with his memory or concentration. Indeed, he attended Bible studies for a portion of the period on appeal, indicating some ability to sustain extended periods of attention and concentration. He was found to have difficulty establishing new relationships, but not an inability to establish new relationships, which is significant. Although his symptoms would likely cause some trouble for him in work or school, the evidence does not show they would regularly interfere with such activities to cause a deficiency in either area. The Board notes that the August 2016 VA examination shows that the Veteran reported having suicidal ideation when his body pain flares, but he did not provide information on how frequently that happens, and denied having them during the examination. Apart from that report, the record does not otherwise show suicidal ideation is a frequent symptom. Indeed, he denied having thoughts of suicide or harming himself in August 2012, April 2014, November 2014, February 2015, April 2015, July 2015, October 2015, December 205, March 2017, and August 2018. Further, he provided no detail on the content or severity of the thoughts, nor on their duration when they do occur. Given this evidence, the Board does not find that the Veteran having deficiencies in most areas and the evidence of this case is distinguishable from Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Accordingly, his 100 percent rating is assigned an earlier effective date to September 4, 2018, but a rating higher than 50 percent prior to that is denied. 2. SMC at the "s" rate, effective September 4, 2018, is granted. SMC is payable at the "s" rate (also referred to as the "housebound (HB) rate") where the Veteran has a single service-connected disability rated as 100-percent disabling and, in addition: (1) has a 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 HB by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran has a 100 percent for MDD, effective September 4, 2018. His other disabilities combine to more than 60 percent as of that date. Accordingly, as of September 4, 2018, he is entitled to SMS at the "s" rate. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Gibson 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.