Citation Nr: 0810217 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 99-16 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to January 9, 2004, for the award of a 30 percent disability evaluation for major depression with anxiety. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active service from September 1977 to October 1980. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in November 2006. This matter was originally on appeal from an October 1997 rating decision of the Waco, Texas, Regional Office (RO). In September 2004, the veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. FINDING OF FACT It was first factually ascertainable that the veteran's major depression with anxiety had increased in severity to warrant a 30 percent disability rating on January 9, 2004. CONCLUSION OF LAW An effective date earlier than January 9, 2004, for the assignment of a 30 percent evaluation for major depression with anxiety is not warranted. 38 U.S.C.A. §§ 1155, 7104 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9400 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Preliminary Matters The Board has thoroughly reviewed all the evidence in the veteran's claims folders. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Pursuant to the Board's November 2006 Remand, the Appeals Management Center (AMC) readjudicated the veteran's claim under provision of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below and issued a supplemental statement of the case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's November 2006 Remand. Stegall v. West, 11 Vet. App. 268 (1998). II. Veterans Claims Assistance Act of 2000 VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). A letter dated in December 2006 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The December 2006 letter told him to provide any relevant evidence in his possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Although this letter was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice, and the claim was readjudicated and an additional supplemental statement of the case (SSOC) was provided to the veteran in July 2007. There is no indication in the record that any additional evidence, relevant to the issues decided herein, is available and not part of the claims file. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). III. Earlier Effective Date The veteran seeks an effective date earlier than January 9, 2004, for the grant of an increased evaluation of 30 percent for major depression with anxiety. Historically, the veteran's original claim for service connection was received in February 1997. In October 1997, the RO denied service connection for a nervous condition. The veteran appealed; and in July 2004, the RO granted service connection for major depression with anxiety and assigned a noncompensable evaluation for the period from February 20, 1997 to January 8, 2004, and a 30 percent evaluation for the period on and after January 9, 2004. The veteran appealed the effective date assigned for the 30 percent rating. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. In cases where, as here, the veteran appeals the initial percentage assigned and "staged" ratings are assigned, the effective date of the increased rating is the date entitlement arose. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). See also 38 C.F.R. § 3.400(b)(2) (effective dates of compensation may be the day following service separation from active service or date entitlement arose if claim is received within one year after separation from service). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's service-connected major depression with anxiety is currently rated under the General Rating Formula for Mental Disorders under 38 C.F.R. § 4.130. We note that the RO assigned a rating code of 9400, generalized anxiety disorder. The rating criteria for major depression and anxiety are indistinguishable, and we accept that the veteran is service- connected for symptoms of anxiety and major depression. Under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, a mental condition that has been formally diagnosed, but the symptoms of which are not severe enough either to interfere with occupational and social function or to require continuous medication warrants a 0 percent evaluation. A 10 percent rating requires occupational and social impairment 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 continuous medication. A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Since the date that the veteran filed his claim, February 20, 1997, the medical evidence indicates that the veteran's anxiety symptoms have fluctuated in severity. At the July 1997 VA examination, after interview with the veteran and mental status examination, the examiner stated that he did not see enough to make a psychiatric diagnosis at that time and assigned a GAF of 85-90. The GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health illness." See the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) (DSM-IV); see also Carpenter v. Brown, 8 Vet. App. 240 (1995). According to DSM-IV, a GAF score of 81 to 90 indicates absent or minimal symptoms ( e.g., mild anxiety before an exam ), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns ( e.g., an occasional argument with family members). Private medical records indicate that the veteran presented on January 31, 2000 with complaint of anxiety and stress. The veteran reported that he had taken Prozac in the past but that it stopped working for him, that it made him somewhat irritable, and that he stopped taking it. He reported that he was not taking any routine medicines at that time. Buspar 15 mg 1/2 tablet twice daily was prescribed and the veteran was to follow up in one week. The veteran presented on February 14, 2000 for follow-up for anxiety. The veteran advised that the Buspar had been helping significantly. An assessment of anxiety was rendered. VA outpatient treatment records dated in June 2003 indicate that the veteran denied agitation, anxiety, and depression. In a November 2003 letter, Dr. D.W. notes that the veteran experienced anxiety on a chronic basis. Dr. D.W.'s treatment records indicate that on November 10, 2003, the veteran "still reports chronic anxiety." On January 12, 2004, the veteran reported that he felt his mood was more stable. At the VA examination in January 2004, the veteran reported that since his last VA examination, he had not been hospitalized for his nerves and he was not seeing a psychiatrist. He also reported that he was working, driving a shuttle bus from about 6:00 a.m. to 12:30 p.m. and that he didn't have a lot of stress on that job. The veteran reported that he handled stress by isolating, that he did not handle confrontations well, and that he got depressed and cried with some relief. The veteran reported that he had very few friends, that he attended church, and that he had had thoughts of suicide. Mental status examination revealed that his speech was difficult and very different from the last VA examination, and that he had a tremendous amount of stuttering and blockage. His affect showed moderate tension and anxiety and moderate depression. The examiner noted that he did see chronic anxiety and depression major. A GAF of 65 was assigned. According to DSM-IV, a GAF score of 61 to 70 indicates the examinee has some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functions pretty well with some meaningful interpersonal relationships. In this case, the findings in the January 2004 VA examination did support an increase to 30 percent. As a result of this examination, the RO increased the disability evaluation to 30 percent based upon symptomatology exhibited at the January 2004 examination. There is no medical evidence on file which reflects that it was factually ascertainable that the veteran's major depression with anxiety had increased in severity to warrant a 30 percent disability rating prior to the January 9, 2004 VA examination. Therefore, the effective date for the increased rating, from noncompensable (zero percent) to 30 percent, for major depression with anxiety may be no earlier than the date of the VA examination, January 9, 2004. In accordance with 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400, the Board finds that the correct effective date for assignment of a 30 percent rating for the service connected disability is January 9, 2004. Accordingly, the Board finds that the effective date of January 9, 2004 assigned for a 30 percent disability rating for the veteran's major depression with anxiety is correct; and an earlier effective date is not warranted. ORDER Entitlement to an effective date prior to January 9, 2004, for the award of a 30 percent disability evaluation for major depression with anxiety, is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs