Citation Nr: 21029953 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-17 573 DATE: May 17, 2021 ORDER Entitlement to a 70 percent rating, but no greater, for posttraumatic stress disorder (PTSD) with depressive disorder is granted. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is dismissed as moot. FINDINGS OF FACT 1. For the period on appeal, the severity, frequency, and duration of the Veteran's PTSD with depressive disorder symptoms more closely approximated occupational and social impairment with deficiencies in most areas. 2. The Veteran is in receipt of a 100 percent disability rating for the entire period on appeal and special monthly compensation (SMC) at the housebound rate. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no greater, for PTSD with depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2020). 2. Entitlement to TDIU is dismissed as moot. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.104 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in September 2018 and October 2020 when it was remanded for further development. In July 2018, the Veteran testified before a Veterans Law Judge and a transcript of that hearing is associated with the claims file. The Veterans Law Judge who conducted the hearing is no longer employed by the Board and is not available to participate in this decision. In a March 2021 letter, the Veteran was informed of this fact and informed of his/her right to a hearing before a different Veterans Law Judge and that if he did not respond within 30 days from the date of this letter, the Board will assume that the Veteran did not want another hearing and would proceed accordingly. To date, the Veteran has not responded to the letter. The Board will therefore proceed with adjudication of the claim at this time. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran is seeking a rating in excess of 50 percent for his service-connected PTSD with depressive disorder. 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 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). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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 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; or memory loss for names of close relatives, own occupation or own name. The Board notes that the plain language of the criteria for a 10 percent rating under the General Rating Formula for Mental Disorders specifically contemplates the effects of medication. Consequently, Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply, and the Board's evaluation of the Veteran's PTSD may include the ameliorative effects of medication. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). The Veteran underwent a VA examination in April 2011. The Veteran described his mood as bad and was still having a lot of problems with his depression and nightmares. His affect was restricted and reported thoughts of suicide due to pain in his back but had no intent or plan. He indicated problems with short term memory and driving long distances. The Veteran's symptoms included depressed mood, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impairment of long term and short-term memory, disturbances of motivation and mood, and suicidal ideation. The Veteran's level of occupational and social impairment was best summarized as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Mental health testing revealed the Veteran was endorsing severe symptoms of depression. The Veteran underwent another VA examination in July 2011. The Veteran complained of nightmares almost every night and problems staying asleep. He also indicated having flashbacks 3-4 times a week and was jumpy and on edge. Although he never tried to take his life, he has thought about it. His mood would be on and off and he lacked energy to be able to work. He described his marriage as "we make it." He had an "alright" relationship with his kids. He read the paper, watched TV, and tried to sleep. There was no impairment of thought processes or communication and he was fully oriented to person, place, time, and situation. He was well groomed; mood was mildly dysthymic with congruent affect. He denied suicidal intent, homicidal intent, hallucinations, and delusions. Attention, memory, and judgment appeared to be within normal limits. There was reduced reliability and productivity due to ongoing disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, ongoing anxiety, chronic sleep impairment, and mild memory loss. In December 2011 VA treatment records, the Veteran described his mood as "so-so." His affect was constricted and in the sad range. The Veteran admitted to fleeting suicidal thoughts without any plan or intent. He denied homicidal thoughts. He described "shadows on the periphery" and indistinct mumbling. In July 2012, the Veteran reported chronically depressed mood and was easily irritated. He denied suicidal ideation but admitted to transient thought of "hurting other people." He started easily and sleep was poor with frequent nightmares. The Veteran was adequately dressed and nourished. No involuntary movements were noted, and eye contact was good. Affect and mood were angry, but the Veteran was not physically hostile. Thought processes were goal-oriented and speech of normal rate and volume. There was no evidence of psychosis. In September and December 2012, he reported a depressed mood and poor sleep but denied suicidal and homicidal ideation. In October 2013 VA treatment records, the Veteran reported being generally irritable but did not express homicidal ideation. His mood was often depressed and he sometimes experienced transient suicidal ideation without plan ot intent. Sleep was still a problem and also frequent nightmares. In February 2014, he also endorsed intrusive memories of combat, poor concentration, and auditory hallucinations of his name being called. The Veteran was adequately dressed and nourished. No involuntary movements were noted, and eye contact was good. Affect was sad and mood was described as "not doing too good." Thought processes were goal-oriented and speech of normal rate and volume. In May and August 2014, the Veteran reported feeling depressed most of the time, crying easily, and experienced transient suicidal ideation. He continued to experience auditory hallucinations of his name being called. In December 2014, the Veteran felt sad and was experiencing transient suicidal ideation. Irritability was a problem, sleep was varied, and the Veteran also experienced nightmares occasionally. Auditory hallucinations were less frequent since his medication was increased. In April 2015 VA treatment records, the Veteran reported being depressed most of the time. He admitted to transient suicidal ideation without plan. He denied homicidal thoughts. He also reported frequent intrusive memories of combat, and his sleep varied with frequent nightmares. He also continued to experience auditory hallucinations but denied visual hallucinations. In July 2015, his symptoms were similar, but denied suicidal ideation at that time. In November 2015, he described a predominately depressed mood with frequent fleeting suicidal ideation without plan. He was easily irritated but not aggressive and did not have homicidal thoughts. He had frequent nightmares. He was oriented to person, place, time, and situation but concentration was poor. The Veteran also reported similar symptoms in March 2016. The Veteran underwent a VA examination in July 2016. The Veteran's level of occupational and social impairment was best summarized as occupational and social impairment with reduced reliability and productivity. He remained married to his wife of 40 years and described his relationship as "okay." He also described his relationship with his children as "okay." He rarely engaged in any type of social activity. The Veteran did not work or attend school since 2011. His symptoms were depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was casually dressed with good grooming and hygiene. His mood/affect was normal and appropriate. Speech was normal. There were no overt signs of psychosis or unusual behavior. The Veteran stated that his sleep was not good, and he would have nightmares almost every night. He did not get along with people and admitted to frequent irritability. Sometimes he would think he would see or hear things but did not know what they were. He would not watch war movies on TV and his mood was not good. The Veteran also reported crying spells and suicidal ideation without plan or intent. VA treatment records from August 2016 note the Veteran becoming more significantly depressed following the death of his uncle. He had transient suicidal ideation without plan and was easily irritated but not aggressive and did not have homicidal thoughts. Nightmares and auditory hallucinations have become less frequent since his medication was increased. His affect was noted as sad. In August 2017, the Veteran reported that his mood had improved but still had crying spells and transient suicidal ideation. He was easily irritated and sometimes broke intimate objects when angry. He did not express homicidal ideation. He did report frequent intrusive memories of combat and sleep was interrupted by nightmares. Concentration was poor and the Veteran continued to have auditory hallucinations of his name being called. He indicated having a visual hallucination of his deceased mother recently. In February 2018 VA treatment records, the Veteran stated he still experiences rare transient suicidal thoughts. He was somewhat irritable, and nightmares were less frequent. He denied recent auditory or visual hallucinations. The Veteran reported similar symptoms in July 2018 and reported that auditory hallucinations were occurring, but less frequent and intense. In November 2018, the Veteran reported being more isolative and irritable recently. He admitted to throwing inanimate objects and having transient thoughts of wanting to harm others. He was having increasing difficulty concentrating and completing tasks. He had had crying spells and transient suicidal ideation. The Veteran had auditory hallucinations of poorly intelligible voices but denied visual hallucinations. Sleep was interrupted by nightmares and he had frequent intrusive memories. During his July 2018 hearing before the Board, the Veteran stated that he had frequent nightmares which would keep him awake several days at a time. He also suffered from irritability and had a short fuse, which affected his relationship with family and friends. He did not do well in crowds and avoided going places. He would sometimes neglect his personal appearance and hygiene. The Veteran also indicated that his mood could change on a dime and not necessarily due to something occurring. In February 2019 VA treatment records, the Veteran reported that his mood fluctuated from day to day and he sometimes experienced crying spells. He was easily irritated but denied physical aggressiveness or homicidal thoughts. Auditory hallucinations continued to occur. Sleep was improved and nightmares were less frequent. In July 2019, the Veteran reported a predominately depressed mood and had occasional fleeting suicidal ideation without intent or plan. Irritability was a problem and sleep was disturbed. Auditory hallucinations continued to occur, and the Veteran did have one visual hallucination a month ago when he thought his wife was talking to him. In October 2019, he indicated that auditory and visual hallucinations had become less frequent. The Veteran underwent a VA examination in June 2019. The Veteran's level of occupational and social impairment was best summarized as occupational and social impairment with reduced reliability and productivity. While the Veteran indicated having a good relationship with his wife and children, he denied participating in social activities with his friends and family. His symptoms were depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran's PTSD impaired his ability to perform physical and sedentary activities of employment. VA treatment records from April 2020 note the Veteran reported a depressed mood and had occasional fleeting suicidal ideation without intent or plan. Irritability was a problem and sleep was disturbed. Auditory hallucinations continued to occur, mainly at night. He denied recent visual hallucinations. Sleep was varied and sometimes interrupted by nightmares. The Veteran underwent another VA examination in July 2020. The Veteran's level of occupational and social impairment was best summarized as occupational and social impairment with 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. He described an okay relationship with his wife and family. He did not have any close friends to confide in and very seldom does activities with his family. He and his wife do not always get along. He has been retired since 2007. His symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was noted to be withdrawn, looked at the floor, and had poor eye contact. His affect was flat. He was casually dressed and groomed. He was limited in his answers. The examiner indicated that the Veteran was so depressed that he had difficulty sustaining energy and motivation to complete assignments. He had other mental health problems, such as panic attacks, irritability, and suspiciousness that interfered significantly with the ability to work. In August 2020 VA treatment records, the Veteran stated that about a month ago he had experienced a period of severe depression and had suicidal thoughts. Irritability was a problem, and on one occasion he punched a wall in anger. He did not express any homicidal thoughts. He had occasional flashbacks and frequent nightmares of combat. He continued to have some auditory hallucinations. In October 2020 he complained of depressed mood, sometimes severe, and cr5ying spells. Irritability was a problem, and he had occasional thoughts of wanting to die when especially sad or angry. Sleep varied, and nightmares continued to occur. He reported auditory hallucinations of mumbled voices but denied visual hallucinations. Following a review of the evidence of record, the Board finds that the Veteran's symptoms most closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking, or mood. As such, the assignment of a 70 percent disability rating, but no higher, is warranted. Most significantly, while the more recent VA examinations do not note this, the VA treatment records are replete with the Veteran's reports of depression with suicidal thoughts and suicidal ideation throughout the appeal period. Additionally, the evidence indicates that the Veteran was affected due to his inability to develop and maintain effective relationships, depression, isolation, sleep impairment, intrusive memories, irritability. The Veteran also had problems with social interaction, avoiding activities and going out even with family due to depression and disturbances in motivation and mood. When taking into consideration the frequency, severity, and duration of the Veteran's symptoms, the Board will resolve doubt in the Veteran's favor and find that a disability rating of 70 percent for the period on appeal is warranted. However, the record does not show total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; or memory loss for names of close relatives and own occupation or name. The Board notes that the Veteran expressed suicidal ideation; however, the Veteran endorsed transient suicidal ideation without intent or plan. The Board finds that the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating, i.e., that he is a persistent danger to himself. These manifestations are not reflective of being a persistent danger of hurting self or others or causing total occupational and social impairment. Also, while the Veteran admitted to irritability and had thought of harming other on one occasion; he has consistently indicating having no physical aggressiveness and no homicidal thoughts. The Veteran has also not shown disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. While the Veteran reported that he sometimes would neglect his personal appearance and hygiene, treatment records consistently indicate that he was appropriately groomed and had proper hygiene. Thus, while the criteria for a 100 percent rating mentions an intermittent inability to perform activities of daily living, including maintaining personal hygiene, the Board finds the Veteran's neglect does not rise to the level of severity required for a 100 percent rating (intermittent inability to perform activities of daily living such as minimal hygiene), but rather, the level of severity mentioned in the criteria for a 70 percent rating (neglect of personal appearance and hygiene). In addition, although it is indicated in VA treatment records that the Veteran has suffered from auditory hallucinations and some visual hallucinations, at no time during the appeal period have any VA examiners indicated that they were persistent or that it has resulted in total occupational or social impairment. Also, the record reflects that the auditory hallucinations have not been peristent throughout the appeal period. The VA examinations do not note any hallucinations and the VA treatment records do not note complaints of hallucinations until 2014, and the Veteran did not persistently report having auditory hallucinations during treatment. Regarding visual hallucinations, the Veteran reported visual hallucinations approximately two times during the appeal period, which does not rise to the level of peristent delusions or hallucinations, which is required for a 100 percent rating. Additionally, the record does not reflect that the Veteran has total social impairment. Although he did not like social interaction and did not have close friends, he has maintained a long-term marriage and has maintained a relationship with his children. Therefore, the frequency, severity, and duration of his symptoms has not been shown to cause total social impairment. Therefore, resolving any doubt in the Veteran's favor, the Board finds that the Veteran's symptoms more nearly approximate the criteria for the assignment of a 70 percent rating for PTSD with depressive disorder because the record shows occupational and social impairment with deficiencies in most areas. The Board has considered all psychiatric symptoms in reaching this conclusion. Mittleider v. West, 11 Vet. App. 181, 182 (1998). TDIU Regarding entitlement to TDIU, the United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that the issue of entitlement to TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where SMC could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114(s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). 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 SMC. Throughout the appeal period, the Veteran is already rated 100 percent disabled due solely to prostate cancer. The question of TDIU entitlement is therefore rendered moot as there is no additional benefit to be gained, actually or potentially, based on TDIU. The Veteran is already entitled to receipt of SMC at the housebound rate under 38 U.S.C. § 1114(s) throughout the appeal period. Id. Accordingly, the question of entitlement to a TDIU is dismissed as moot. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.