Citation Nr: 21041071 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-10 813 DATE: July 8, 2021 ORDER From August 11, 2017 to present, entitlement to a 100 percent disability rating for major depressive disorder is granted. From February 3, 2014 to August 10, 2017, entitlement to an increased disability rating in excess of 70 percent for major depressive disorder is denied. Entitlement to special monthly compensation (SMC) based on need for aid and attendance or housebound status due to service-connected disabilities is denied. FINDINGS OF FACT 1. From August 11, 2017 to present, the Veteran's major depressive disorder was characterized by total social and occupational impairment due to symptoms such as persistent delusions or hallucinations, difficulty in adapting to stressful circumstances (including work or a worklike setting), flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, mood, suspiciousness, chronic sleep impairment, mild memory loss, and disorientation to time or place. 2. From February 3, 2014 to August 10, 2017, the Veteran's major depressive disorder was characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as difficulty in adapting to stressful circumstances including work or a worklike setting, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, depressed mood, suspiciousness, chronic sleep impairment, and mild memory loss such as forgetting names, directions, recent events. 3. The Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot, is not blind in both eyes, and is not permanently bedridden or so helpless as to be in need of regular aid and attendance due to service-connected disabilities. 4. The Veteran does not have a single service-connected disability rated as 100 percent and an additional service-connected disability independently ratable at 60 percent and is not permanently housebound by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. From August 11, 2017 to present, the criteria for a 100 percent disability rating for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 2. From February 3, 2014 to August 10, 2017, the criteria for a disability rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for entitlement to SMC based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114(l), (s), 5121; 38 C.F.R. §§ 3.350, 3.352, 3.1000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating for Depressive Disorder The Veteran contends that the severity of his depressive disorder is more severe than contemplated by the current 70 percent disability rating. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. 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 noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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. a. Period from February 3, 2014 to August 10, 2017 The Board concludes that for the period from February 3, 2014 to August 10, 2017, the Veteran's major depressive disorder symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. VA and private treatment records, the February 2014 and December 2014 VA examinations and the Veteran's lay statements show that the Veteran's major depressive disorder was manifested by symptoms associated with a 70 percent rating such as difficulty in adapting to stressful circumstances including work or a worklike setting; symptoms associated with a 50 percent rating such as difficulty in understanding complex commands, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; and symptoms associated with a 30 percent rating such as depressed mood, suspiciousness, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). He also had symptoms that are not listed with a specific rating, such as frequently forgetting to pay bills and misplacing money. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Forgetting to pay bills and misplacing money are similar to impairment of short- and long-term memory (forgetting to complete tasks), which are contemplated by the assigned 70 percent rating. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity, as noted in VA examinations. Mental status examinations in VA and private treatment records and the February 2014 and December 2014 VA examinations indicate that the Veteran presented appropriately groomed and dressed; with clear, logical, and goal-directed speech; with good eye contact; oriented to time, place, person, and purpose; with adequate thinking; with memory not impaired; and with adequate insight and judgment. There is no evidence of symptoms associated with the 100 percent rating, such 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. Additionally, VA treatment records and the February 2014 and December 2014 VA examination reports indicate that the Veteran frequently denied delusions, hallucinations, suicidal ideation, thoughts of death, and thoughts of harm to self or others. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The evidence shows that for the period from February 3, 2014 to August 10, 2017, the Veteran's symptoms are more nearly approximated by a 70 percent rating, which is currently in effect. The criteria for a 100 percent rating are not met from February 3, 2014 to August 10, 2017 and the appeal must be denied. b. Period from August 11, 2017 to Present The Board concludes that from August 11, 2017 to present, the Veteran's major depressive disorder more nearly approximates the level of impairment required for a disability rating of 100 percent. VA and private treatment records, the August 2017 and December 2019 VA examinations, and the Veteran's lay statements show that the Veteran's major depressive disorder was manifested by symptoms associated with a 100 percent rating such as persistent delusions or hallucinations; symptoms associated with a 70 percent rating such as difficulty in adapting to stressful circumstances (including work or a worklike setting); symptoms associated with a 50 percent rating such as flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; and symptoms associated with a 30 percent rating such as depressed mood, suspiciousness, chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). The Veteran also had symptoms that are not listed with a specific rating, such as disorientation and forgetting the date, day of week, and place. These symptoms more nearly approximate total social and occupational impairment because persistent delusions and hallucinations are symptoms associated with a total disability rating. During the August 2017 VA examination, he reported seeing things that are not there or hearing things or movements in the house. During the December 2019 VA examination, the Veteran endorsed auditory and visual hallucinations one year ago, when he stopped his medications for a period of two weeks. Additionally, his daughter reported during the examination that the Veteran was experiencing visual hallucinations as recently as October. Additionally, the unlisted symptoms of forgetting the date, day of week, and place are similar to disorientation to time or place, which is associated with a total disability rating. As the most probative evidence of record shows total occupational and social impairment, the maximum 100 percent rating is warranted for major depressive disorder from August 11, 2017 to present. Special Monthly Compensation The Veteran seeks entitlement to SMC based on need for aid and attendance and/or housebound status due to service-connected disabilities. During the period on appeal, service connection is in effect for major depressive disorder at 70 percent disabling prior to August 11, 2017 and 100 percent disabling thereafter, and for low back strain at 40 percent disabling. a. SMC based on Aid and Attendance SMC is payable at the aid and attendance rate when a veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliance which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination. 38 C.F.R. § 3.352. Having reviewed the record, the Board finds that the Veteran is not in need of regular aid and attendance due to his service-connected disabilities. The evidence does not show, and the Veteran has not asserted, that he suffers from the anatomical loss of both feet, from the anatomical loss or loss of use of one hand and one foot, or is blind in both eyes due to service-connected disability. Additionally, the evidence does not show that the Veteran suffers from loss of use of both feet. To the extent that the Veteran uses assistive devices such as canes and walkers, he nonetheless is still able to ambulate. December 2014 and October 2019 VA examinations reveal that the Veteran is able to walk without the assistance of another person up to a few hundred yards and within the house. Moreover, treatment records and the December 2014 and October 2019 VA examinations do not show ankylosis or shortening of the lower extremities due to service-connected back strain or major depressive disorder. Accordingly, the Board finds that this would not more nearly approximate loss of use of the foot. Additionally, the evidence does not establish that the Veteran is permanently bedridden or so helpless as to need regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). December 2014 and October 2019 VA examinations reveal that the Veteran is not permanently bedridden or hospitalized, and is able to travel beyond his current domicile without any restrictions. VA treatment records and lay statements indicate that the Veteran's spouse and daughter assisted with chores such as cooking meals and cleaning the house. However, the December 2014 and October 2019 VA examinations reveal that he is able to perform all functions of self-care and activities of daily living, such as self-feed, dress and undress, self-bathe, self-groom, and toileting. Additionally, it was determined the Veteran was generally able to protect himself from the hazards of daily living. For these reasons, the Board finds that the Veteran is not permanently bedridden or so helpless as to be in need of regular aid and attendance. In sum, the Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot, is not blind in both eyes, and is not permanently bedridden or so helpless as to be in need of regular aid and attendance. Accordingly, entitlement to SMC based on aid attendance has not been shown, and the claim is denied. b. SMC based on Housebound Status SMC is payable at the housebound rate when a veteran has a single service-connected disability rated as 100 percent and, (1) 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 systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Additionally, special monthly compensation is payable at the housebound rate only if the Veteran has a single service-connected disability rated as 100 percent and, (1) an additional service-connected disability or disabilities independently ratable at 60 percent, or (2) is permanently housebound by reason of service-connected disability or disabilities. Having reviewed the record, the Board finds that SMC is not warranted based on housebound status. First, the Veteran does have a single service-connected disability rated as 100 percent disabling. However, he does not have an additional service-connected disability independently ratable at 60 percent rating. As such, SMC based on housebound status is not warranted on this basis. Additionally, the evidence does not show that the Veteran is permanently housebound by reason of his service-connected disabilities. December 2014 and October 2019 VA examinations reveal that the Veteran is able to walk without the assistance of another person up to a few hundred yards and within the house, and was unrestricted in leaving the home. To the extent that the Veteran experiences suspiciousness and self-isolation, he was also noted to still be able to ride to town with his wife or other family member. For these reasons, the Board finds that the evidence does not establish that the Veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises. In sum, the Veteran does not have a single service-connected disability rated as 100 percent and, an additional service-connected disability or disabilities independently ratable at 60 percent, or is permanently housebound by reason of service-connected disabilities. Accordingly, entitlement to SMC based on aid attendance has not been shown, and the claim is denied. (CONTINUED ON NEXT PAGE) In conclusion, the Board finds that the criteria for SMC based on the need for aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114(l), (s), 5121; 38C.F.R. §§ 3.350, 3.352, 3.1000. The claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang 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.