Citation Nr: 23043455 Decision Date: 08/05/23 Archive Date: 08/05/23 DOCKET NO. 19-35 711 DATE: August 5, 2023 ORDER Entitlement to a 70 percent disability rating for major depressive disorder from June 1, 2017, to September 19, 2017, is granted. Entitlement to a temporary total (100 percent) disability rating from September 19, 2017, to October 31, 2017, is granted. Entitlement to a disability rating in excess of 70 percent for major depressive disorder is denied. FINDINGS OF FACT 1. The evidence is at least in approximate balance as to whether the Veteran's acquired psychiatric disorder resulted in functional impairment equivalent to occupational and social impairment with deficiencies in most areas from June 1, 2017, the date his increased rating claim was received by VA. 2. The Veteran was admitted for in-patient hospital treatment for his acquired psychiatric disorder at a VA facility beginning on September 19, 2018, and continuing through December 20, 2018; therefore, a temporary 100 percent rating is warranted from September 19, 2018, through December 31, 2018. 3. The Veteran's acquired psychiatric disorder resulted is not shown to have resulted in total social impairment at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating for major depressive disorder from June 1, 2017, to September 19, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.29, 4.126, 4.130, Diagnostic Code 9434. 2. The criteria for a temporary total (100 percent) disability rating from September 19, 2017, to October 31, 2017, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.29. 3. 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. §§ 4.3, 4.7, 4.29, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the United States Army from June 2010 to December 2010 and on active duty from April 2011 to October 2011, with additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in March 2022. A transcript of the hearing is associated with the claims file. The Veteran has been diagnosed with a number of different acquired psychiatric disorders. Acquired psychiatric disorders are rated under the General Rating Formula at 38 C.F.R. § 4.130. There is no indication that the Veteran's disorders result in distinguishable impairment to the extent that separate ratings are warranted. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009). The Board will refer to the Veteran's condition as an acquired psychiatric disorder to contemplate the impairment from all of his service-connected acquired psychiatric disorders. The Board remanded this matter in September 2022. The agency of original jurisdiction (AOJ) was asked to issue a Supplemental Statement of the Case (SSOC) in consideration of additional VA-generated evidence received since the prior Statement of the Case. The AOJ issued an SSOC in November 2022. The Board finds that there is substantial compliance with the remand directives. While this matter was pending, the AOJ granted a 70 percent rating for the acquired psychiatric disorder from June 21, 2022. It also assigned a total disability rating for compensation purposes due to individual unemployability (TDIU) from that date. See Rating Decision - Narrative, October 2022. The AOJ later revised the effective date of the 70 percent rating and TDIU to September 19, 2018. See Rating Decision - Narrative, November 2022. These are partial grants of the appeal. AB v. Brown, 6 Vet. App. 35 (1993). Higher staged ratings remain at issue. The Veteran has opted-in to the Appeals Modernization Act (AMA) system to review the issue of an earlier effective date of TDIU than September 19, 2018. See VA Form 20-0996, December 2022. Even though TDIU is typically intertwined with a pending increased rating claim, the Veteran's decision to opt-in to the AMA system removes the matter from the Board's appellate purview in the legacy system. See 38 U.S.C. § 7104(a) (holding that a veteran has the right to one review on appeal). A February 2023 rating decision denied an earlier effective date of TDIU. The Veteran has one year from the date of notification of that decision to file a supplemental claim application or Board appeal. 38 U.S.C. § 7105. Increased Rating - Acquired Psychiatric Disorder The Veteran seeks entitlement to higher staged ratings for his acquired psychiatric disorder. He asserts that he should be entitled to a 70 percent rating for his symptoms for the entire rating period. Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Under the General Rating Formula, 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. A 70 percent 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 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. In Bankhead v. Shulkin, 29 Vet. App. 10, 19-23 (2017), the United States Court of Appeals for Veterans Claims (Court) described suicidal ideation as a continuum. At one end, there is passive suicidal ideation such as wishing you would not wake up and at the other there is active suicidal ideation with plan. However, the Court found that both were considered suicidal ideation in the 70 percent rating, and that in some cases the finding of suicidal ideation may cause the level of social and occupational impairment described in the 70 percent rating. A maximum 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; and memory loss for names of close relatives, own occupation, or own name. A total disability rating (100 percent) will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at Department of Veterans Affairs expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Subject to the provisions of paragraphs (d), (e), and (f) of this section this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. A temporary release which is approved by an attending VA physician as part of the treatment plan will not be considered an absence. 38 C.F.R. § 4.29(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). An approximate balance of the evidence includes but is not limited to equipoise. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id. The Veteran is presently rated as 50 percent prior to September 19, 2018; 70 percent from that date; 100 percent (based on a period of hospitalization for psychiatric symptoms) from October 1, 2018; and 70 percent from January 1, 2019. See Rating Decision - Codesheet, November 2022. The question is whether any higher staged ratings for his acquired psychiatric disorder may be assigned. On June 1, 2017, the Veteran filed his claim for an increased rating for his acquired psychiatric disorder. The Veteran underwent a VA examination in June 2017. He reported, among other things, that he was presently living with his parents in a trailer on their property and had two close friends for many years and support from his grandmother, but no other social support. He said that he continued to do National Guard training because it was around people he trusts. He indicated that he had not worked since 2016 and has anxiety which makes it difficult for him to be around people. He stated that he was hospitalized three times for suicidal ideation and stayed at the VA domiciliary program for six months in an intensive outpatient program but denied having suicidal ideation "for a long time" despite ongoing reports of "feeling worthless." He endorsed being constantly worried at night, feeling on edge, and having thoughts that terrorist organizations or others could enter his home and rob him. He was not pursuing a romantic relationship because of his Noonan's syndrome. He reported having social withdrawal and lost motivation. The examiner, Dr. L.S., listed symptoms for ratings purposes as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He indicated that the Veteran was having insomnia with continuing nighttime safety checking rituals, but did not pose a danger to himself or others. Dr. L.S. described the Veteran's functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. VA treatment records were reviewed. The Veteran was hospitalized in February 2015 for depression and suicidal ideation. See CAPRI, August 2017 (p.1). His goals were listed as stabilization of depression and resolution of suicidal ideation. The clinician composed a treatment plan and listed an anticipated discharge date. On September 19, 2018, the Veteran reported that he was having suicidal ideation over most days of the past two weeks. See CAPRI, May 2019 (p.792-793). He said that he was experiencing increased financial stressors and would like to come to the emergency department before his condition became worse. The clinician advised the Veteran to come to the hospital for treatment. The Veteran arrived in the emergency department later that night and was admitted for psychiatric care. He was later transferred to a VA domiciliary program on October 1, 2018, and remained in a VA facility until he was discharged on December 20, 2018. The Board finds that, under an approximate balance standard, the evidence supports the assignment of a 70 percent rating from June 1, 2017. This is the date that the claim for an increased rating was received by VA. 38 C.F.R. § 3.400(o). An effective date of September 19, 2018, is assigned for the temporary total rating based on hospitalization. 38 C.F.R. § 4.29. No other higher ratings are warranted. The Veteran has exhibited severe acquired psychiatric disorder symptoms during the rating period including suicidal ideation and obsessional rituals (as noted by Dr. L.S. in June 2017). These symptoms are suggestive of a 70 percent rating. 38 C.F.R. § 4.7. Although the Veteran reported to Dr. L.S. that he had not had suicidal thoughts for a long time in June 2017, he had a significant history of suicidal ideation and attempts in relatively close proximity to the rating period, which suggests that it would be difficult to discount such symptoms in rating the disorder. His psychiatric impairment also resulted in significant deficiencies in his ability to work, socialize, and regulate his mood. The Board will resolve reasonable doubt in his favor and assign a higher rating as indicated. The Board has considered whether a 100 percent rating may be assigned. Total occupational and social impairment is simply not shown. The record establishes that the Veteran attends church and was placed in charge of security for the facility. He also reported that he was acting as an online peer-to-peer support counselor for other veterans. The fact that the Veteran was able to socialize with others at church, serve as the responsible authority for security of his congregation, and provide counsel to other veterans online belies the notion of total occupational and social impairment. See 38 C.F.R. §§ 4.7, 4.126(a). Similarly, the Veteran reported having a good relationship with his mother and endorsed have two friends. This does not suggest total social impairment to warrant a higher rating. The Veteran was assigned a temporary 100 percent rating due to a hospitalization caused by his psychiatric symptoms. 38 C.F.R. § 4.29. As stated above, the evidence shows that he was admitted to in-patient treatment on September 19, 2018, and discharged on December 10, 2018. The AOJ assigned a temporary 100 percent rating from October 1, 2018, through December 31, 2018. They based their determination on a letter from Dr. R.G. stating that the Veteran was admitted on October 1, 2018, and treated through December 1, 2018. Yet, the record is clear that the Veteran was admitted for VA in-patient hospital treatment on September 19, 2018. The Board will therefore revise the effective date of the temporary total rating to September 19, 2018. 38 C.F.R. § 4.29(a). Consideration was given to arguments from the Veteran's attorney. He submitted a brief asserting, among other things, that the Veteran exhibited persistent suicidal ideation resulting in deficiencies in most areas and should be assigned a 70 percent rating. In response, the Board has herein assigned a 70 percent rating for the entire eligible rating period outside of the temporary 100 percent rating. Neither the Veteran's attorney nor the evidence of record suggests that a non-temporary 100 percent rating is warranted at any time during the rating period. In summary, with resolution of reasonable doubt in the Veteran's favor, a 70 percent rating may be assigned from June 1, 2017. 38 U.S.C. § 5107(b). The effective date of the temporary total rating is revised to September 19, 2018. No other higher staged ratings are warranted in this case. The Board has considered the decision of the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In Bradley, the Court held that special monthly compensation (SMC) might be warranted when a separate award of a TDIU rating, predicated on a single disability (perhaps not ratable at the schedular 100 percent level), is considered together with another disability separately rated at 60 percent or more. 38 U.S.C. § 1114 (s); see also Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). In the instant case, the TDIU was essentially based upon the Veteran's acquired psychiatric disorder. However, as the Veteran's only other service connected disability is tinnitus, which is rated as 10 percent disabling, entitlement to SMC benefits under Bradley and Buie is not warranted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.