Citation Nr: 21039137 Decision Date: 07/19/21 Archive Date: 07/19/21 DOCKET NO. 19-25 605 DATE: July 19, 2021 ORDER Entitlement to an initial rating greater than 70 percent prior to June 28, 2019, for major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) effective September 3, 2010 to December 3, 2014, is granted. Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance of another person under 38 U.S.C. § 1114(l) is denied. FINDINGS OF FACT 1. The record evidence shows that, prior to June 28, 2019, the service-connected major depressive disorder was not manifested by total occupational and social impairment. 2. The record evidence shows that, effective September 3, 2010 to December 3, 2014, the service-connected major depressive disorder precluded the Veteran's ability to secure or follow a substantially gainful occupation. 3. The record evidence does not show that the Veteran's service-connected disabilities render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 70 percent prior to June 28, 2019, for major depressive disorder have not been met. 8 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for a TDIU from September 3, 2010 to December 3, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. The criteria for SMC based on the need for regular aid and attendance have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to March 1964. The matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, an August 2019 rating decision assigned a 100 percent rating for the service-connected major depressive disorder effective June 28, 2019. Additionally, a May 2020 rating decision granted a TDIU effective December 4, 2014, as well as SMC at the housebound rate under 38 U.S.C. § 1114(s) for the period of January 2, 2018 to May 1, 2018 and from June 28, 2019. A June 2020 Board decision denied an effective date prior to September 3, 2010 for the grant of service connection for major depressive disorder. The Board also granted an initial 70 percent rating prior to June 28, 2019, for the service-connected major depressive disorder. The Veteran appealed the higher initial rating claim for major depressive disorder to the United States Court of Appeals for Veterans Claims (Court). In January 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's June 2020 denial of an initial rating greater than 70 percent prior to June 28, 2019, for major depressive disorder and remanded the matter to the Board for action consistent with the JMPR. Higher Initial Rating Claim The Board notes that the Veteran is in receipt of a 100 percent schedular rating effective June 28, 2019, for his service-connected major depressive disorder. Thus, the question before the Board is whether the Veteran is entitled to an initial rating greater than 70 percent prior to June 28, 2019. The Board finds that the preponderance of the evidence is against granting an initial rating greater than 70 percent prior to June 28, 2019, for major depressive disorder. The Veteran contends that his psychiatric symptoms, prior to June 28, 2019, include reliving in-service assault and sexual trauma, nightmares, thrashing while asleep, suicidal ideation, irritability, panic attacks, aggressive behavior, night sweats, anxiety, self-isolation, emotional withdrawal, and uncontrollable crying. His wife reported that while he is asleep, he yells, screams, and moves his legs as if he is trying to run away. She also reported that he has unconsciously kicked, choked, and punched her while she is asleep. The Veteran's private treatment and VA treatment records reveal the following psychiatric symptoms: nightmares with feelings of rage, lack of concentration, thrashing while sleeping, panic attacks, anger outburst, irritability, depression, lack of energy, impaired short-term memory, and suicidal ideation. An April 2016 VA examiner noted that the Veteran appeared highly distressed when describing military trauma and was visibly and tearfully anxious. He reported suicidal ideation without plan or intent, being uncomfortable around males, being leery of crowds, difficulty trusting others, and only having a few relationships due to trust issues. He further stated he has a "highly supportive" wife of 54 years, three adult children he sees regularly, and four grandchildren. He indicated that he is "close" with his family. He reported that he spends a majority of his time watching TV, walking his dogs, or cleaning around the house. The examiner noted that the Veteran has not worked since 1995. The examiner noted that he was casually dressed and adequately groomed. The examiner also noted that his remote and recent memory were intact, his insight and judgment were fair, and his thought process was primarily goal-directed. The Board finds that the Veteran has not displayed a total level of psychiatric impairment as indicated by symptoms such as spatial disorientation, gross impairment in thought process or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self and others, disorientation to time or place, and memory loss for names of close relatives, own occupation or own name at any time during the appeal period. These symptoms or other symptoms reflective of total impairment are not shown by the medical and/or lay evidence of record dated prior to June 28, 2019. Here, the Veteran's VA and private treatment records and April 2016 VA examination report indicate that he has been found consistently to be exhibiting appropriate hygiene and was capable of managing his financial affairs. The Board notes that, while the Veteran has reported suicidal ideation throughout the appeal period, there is no indication that he was in persistent danger of hurting himself or others as attempts were denied consistently or not shown in the record. The record reflects that the Veteran has maintained a close relationship with wife, children, and grandchildren during the appeal period. Additionally, none of the contemporaneous records reflect any gross impairment in thought processes or communication as he consistently was oriented and his thought processes and thought content were coherent, linear, logical, and goal directed. Moreover, there is no allegation or objective finding suggesting that he experienced memory loss for names of close relatives, his own occupation, or his own name. The Board emphasizes that, in analyzing the claim, the symptoms identified in the Rating Formula have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating. See Mauerhan, 16 Vet. App. at 442. The evidence supports finding that the service-connected major depressive disorder has been characterized by symptomatology which results in no more than occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating, throughout the appeal period. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 70 percent prior to June 28, 2019, for his service-connected major depressive disorder. In summary, the Board finds that the criteria for an initial rating greater than 70 percent prior to June 28, 2019, for major depressive disorder have not been met. Entitlement to a TDIU The Veteran is in receipt of a TDIU effective December 4, 2014. The Board notes that entitlement to a TDIU was raised as part and parcel of the Veteran's disagreement with the initial rating for his service-connected major depressive disorder. The Board next notes that service connection for major depressive disorder is effective September 3, 2010. Thus, the period for consideration for a TDIU is from September 3, 2010 to December 3, 2014. At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU throughout the appeal period. See 38 C.F.R. § 4.16(a). Thus, the remaining inquiry is whether the Veteran's service-connected disabilities precluded employment during this time period. Review of the record reveals that the Veteran worked as a manager at a food processing plant from 1984 to 1995. Prior to that, he worked a number of different jobs to include building trailers, welding, phone company installer/repairman, and food inspector. On his May 2020 Application for his Application for Increased Compensation Based on Individual Unemployability, VA Form 21-8940 (formal TDIU claim), the Veteran reported that the last worked full-time and became too disabled to work in August 1995. During the April 2016 VA psychiatric examination, the Veteran reported being uncomfortable around men at work and being untrusting of others. He reported experiencing "mental breaks" causing him to get to the point where he could not work anymore. In a May 2020 statement, he reported that he last worked in 1995 as a plant manager at a canning company. He stated that he had three to four significant panic attacks per week that could last half a day and that he was withdrawn, irritable, and lacked motivation. He further stated that he would walk around the plant in total daze and made poor management decisions. He also reported that he would become angry over little things and occasionally had crying spells. He reported that he held this job for 11 years and that it was the longest position he ever held as prior to that he jumped around every 4 years. The Veteran submitted a private medical opinion dated April 2020 from P.T., a vocational consultant. P.T. opined that, based on a review of the claims file, it was more likely than not that the Veteran's depression, tinnitus, and bilateral hearing loss have rendered him unable to secure and follow substantially gainful employment, including unskilled sedentary employment, since August 2010. She indicated that his depression is severe and causes symptoms such as depressed mood, lack of energy and motivation, anxiety, and panic attacks that would interfere with his ability to meet employer expectations of pace and productivity. She further indicated that his irritability and anger outbursts render him unable to interact appropriately and effectively with others, as is required in all competitive employment. P.T. indicated that he does not possess any skills that are readily transferable to other occupations as he does not possess any computer skills, a college degree, or professional training. Additionally, she indicated that, even if he were able to obtain employment, his inability to establish and maintain appropriate work relationships, his inability to communicate effectively with others, and his significantly reduced pace and productivity would preclude him from maintaining competitive employment at any skill or exertional demand level. Based on the evidence of record, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that a TDIU is warranted effective September 3, 2010, to December 3, 2014. The evidence supports finding that the Veteran has been unable to secure and follow substantially gainful employment by reason of his service-connected major depressive disorder throughout the appeal period. He experiences anger outbursts, panic attacks, and irritability. Additionally, his service-connected major depressive disorder hinders his ability to establish and maintain appropriate work relationships or communicate effectively with others. Moreover, the evidence does not show that his experience is easily transferable to other types of employment. In summary, considering the severity of the Veteran's service-connected major depressive disorder, as well as his employment and education history, the Board finds that entitlement a TDIU is warranted from September 3, 2010 to December 3, 2014. Entitlement to SMC The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to SMC based on a need for regular aid and attendance of another person under 38 U.S.C. § 1114(l). The evidence of record does not show, and the Veteran does not allege, that he has anatomical loss of both feet or of one hand and one foot, blindness in both eyes, or is permanently bedridden. Thus, the critical question to be determined in this case is whether the service-connected disabilities have resulted in the need for regular aid and attendance of another person because of resultant helplessness due to mental and/or physical impairment. A July 2018 activities of daily living screening noted that he needs no supervision, direction, or personal assistance with bathing, dressing, toileting, transferring, or feeding/eating. A June 2019 VA psychiatric examiner noted that the symptoms attributable to the service-connected major depressive disorder include depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, impairment in short- and long-term memory, flattened affect, circumstantial, circumlocutory, or stereotyped speech, difficulty understanding complex commands, impaired judgment, disturbance of motivation and mood, difficulty adapting to stressful circumstances, difficulty establishing and maintaining effective work and social relationships, suicidal ideation, impaired impulse control, persistent delusions or hallucinations, and neglect of personal appearance and hygiene. The examiner indicated that the Veteran was capable of managing his financial affairs. April and June 2019 VA treatment records indicate that he went on a trip to Florida with two of his grandchildren and one of their friends. A November 2019 VA psychiatric examiner noted that the Veteran has a few friends with whom he visits and belongs to the Masonic Lodge but is not active. The examiner further noted that the Veteran leaves the house every 7 to 10 days to go to Wal-Mart where he waits in the car while his wife shops. The symptoms attributable to the service-connected major depressive disorder included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty establishing and maintaining effective work and social relationships, suicidal ideation, and disturbances of motivation and mood. The examiner indicated that the Veteran was capable of managing his financial affairs. She further noted that, while he was oriented to the month and year, he was five days off on the date. A December 2019 VA heart conditions examiner opined that the Veteran has difficulty walking further than one to two blocks without experiencing shortness of breath. In a February 2020 statement the Veteran reported that on an average day he watches TV and takes the dog outside. He stated that if he goes grocery shopping with his wife, he stays in the car. He further stated that his wife takes care of all the cooking, cleaning, driving, and financial affairs as he does not have energy for it. He also reported that she reminds him of what day it is, sets out his clothes, and encourages him to eat and bathe on a regular basis. Upon consideration of the evidence of record, the Board finds that the Veteran's service-connected disabilities do not render him unable to feed himself, keep himself ordinarily clean and presentable, attend to the wants of nature, dress or undress himself, or that the service-connected disabilities require care or assistance from another person on a regular basis in order to protect himself from the hazards and dangers incident his daily life. Here, the competent evidence of record indicates that he is able to perform activities of daily living and self-care skills. While he reports that his wife sets out his clothes and encourages him to eat and bathe, the evidence shows that he is able to feed, dress, and bathe himself without assistance. Additionally, the evidence indicates that he is able to leave the house without supervision to attend medical appointments, go on vacations, and care for his dog. In other words, the Veteran's service-connected disabilities do not rise to the level of a disability picture requiring the aid and attendance of another person. He otherwise has not identified or submitted any evidence demonstrating his entitlement to SMC. In summary, the Board finds that the criteria for SMC based on a need for regular aid and attendance of another person under 38 U.S.C. § 1114(l) have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, Associate 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.