Citation Nr: 1319451 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 07-05 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an effective date earlier than October 27, 2008, for the award of a 60 percent rating for depressive disorder not otherwise specified (NOS). (The issues of entitlement to an increased rating for a lumbosacral strain with intervertebral disc disease and entitlement to an earlier effective date for the award of a total rating based on individual unemployability due to service-connected disabilities (TDIU) are the subject of a separate decision of the Board.) REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and P.B. ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In that decision, the RO granted an increased (60 percent) rating for depressive disorder NOS, effective from January 21, 2009. By a July 2012 decision, a Decision Review Officer assigned an effective date of October 27, 2008, for the award of a 60 percent rating for depressive disorder NOS. The Veteran testified before the undersigned at a February 2013 videoconference hearing. A transcript of that hearing has been associated with his Virtual VA file. FINDINGS OF FACT 1. By a July 2005 rating decision, the RO granted service connection for depressive disorder NOS and assigned an initial 10 percent disability rating, effective from February 1, 2005. 2. The Veteran disagreed with the July 2005 decision; increased ratings were thereafter awarded (20 percent from February 1, 2005, and 40 percent from September 21, 2006), and a statement of the case was issued in November 2006, but the Veteran did not file a substantive appeal. 3. The Veteran's next claim for an increased rating for the service-connected depressive disorder NOS was received on January 21, 2009 and the disability did not undergo a factually ascertainable increase in symptomatology prior to October 27, 2008. CONCLUSION OF LAW The criteria for an effective date earlier than October 27, 2008, for the award of an increased (60 percent) rating for depressive disorder NOS have not been met. 38 U.S.C.A. §§ 5107(b), 5110, 7105 (West 2002); 38 C.F.R. §§ 3.155(a), 3.157(b)(1), 3.400, 4.130 (Diagnostic Code (DC) 9434), 19.32, 20.200, 20.302(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). This appeal arises from the Veteran's disagreement with the effective date assigned after the grant of an increased (60 percent) rating for the service-connected depressive disorder NOS. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, Social Security Administration (SSA) disability records, and all of the identified relevant post-service VA treatment records and private medical records. Also, the Veteran was afforded a VA examination in conjunction with the claim that resulted in the grant of his 60 percent rating. There is no indication that further examination would assist in substantiating entitlement to an earlier effective date. There is no reported relevant evidence that remains outstanding with respect to the claim being decided herein; nor is there any indication of the need for additional examinations or opinions. Further assistance is unlikely to assist the Veteran in substantiating entitlement to an earlier effective date. Analysis The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that, unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefrom. 38 U.S.C.A. § 5110(a). Specifically as to claims for increase, the statute provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court and VA General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1),(2); VAOPGCPREC 12- 98 (1998). In addition, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). A report of VA examination or hospitalization can be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(b)(1). The Veteran's depressive disorder NOS is currently rated under 38 C.F.R. § 4.130, DC 9434 as major depressive disorder according to the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 70 percent disability rating is warranted when there is 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 worklike setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9434. The Court has held that the criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). In a July 2005 rating decision, the RO granted service connection for depressive disorder NOS and assigned an initial 10 percent disability rating, effective February 1, 2005. The Veteran submitted a timely notice of disagreement with respect to the rating assigned in this decision in April 2006. A DRO subsequently assigned an initial 20 percent rating, from February 1, 2005 through September 20, 2006, and an initial 40 percent rating, from September 21, 2006, for depressive disorder NOS by way of a November 2006 decision. A statement of the case was also issued in November 2006. Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case has been furnished to an appellant. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A substantive appeal must be filed within 60 days from the date of mailing of notice of the result of initial review or determination, or within the remainder of the one year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. Such notice must be in writing. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.302(b). In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final. 38 U.S.C.A. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The RO did so in this case, as evidenced by the fact that it did not certify the issue of entitlement to a higher initial rating for depressive disorder NOS to the Board following the November 2006 statement of the case. The Veteran submitted a substantive appeal (VA Form 9) in February 2007, but he specified that he was only appealing the issue of entitlement to an increased rating for his service-connected low back disability. Also, in a March 2007 statement (VA Form 21-4138), he expressed his intent to withdraw his appeal for a higher initial rating for depressive disorder NOS. Thus, the RO closed the appeal as to that issue, it did not certify this issue to the Board, and no further action has been taken by VA to suggest that the issue was appealed. Thus, the July 2005 decision became final. See Fenderson v. West, 12 Vet. App. 119, 128-31 (1999) (discussing the necessity of filing a substantive appeal which comports with governing regulations). During a Board hearing before a Veterans Law Judge conducted on January 21, 2009, the Veteran reported that he experienced severe depression or anxiety and he raised the issue of entitlement to a TDIU. A formal claim for a TDIU (VA Form 21-8940) was subsequently received by the RO on March 5, 2009. The Veteran reported on this form that he was unable to secure or follow substantially gainful employment due, at least in part, to his service-connected psychiatric disability. Thus, the RO construed his testimony during the January 2009 hearing as a claim for an increased rating for depressive disorder NOS. There is no evidence of any unadjudicated formal or informal claim for an increased rating for that disability from the time that the Veteran withdrew his appeal for a higher initial rating for that disability in March 2007 until January 21, 2009. In the June 2009 rating decision, based on the results from an April 2009 VA psychiatric examination, the Veteran's SSA disability records, and various lay statements, the RO granted an increased (60 percent) rating for depressive disorder NOS, effective January 21, 2009, the date of the Board hearing during which the Veteran made statements that were construed as an increased rating claim. The 60 percent rating was assigned based on the fact that his psychiatric symptoms approximated the criteria for a 70 percent rating under DC 9434, but that the depressive disorder, which was found to be service connected on a secondary basis in that it had been aggravated by the Veteran's service-connected low back disability, was already 10 percent disabling prior to such aggravation. In the July 2012 decision, the DRO assigned an effective date of October 27, 2008 for the award of the 60 percent rating for the service-connected psychiatric disability, the date of an examination report from Maine Disability Determination Services, which reflected an increase in the severity of the Veteran's psychiatric symptoms. In light of the above, an earlier effective date for the award of a 60 percent rating for depressive disorder NOS is only possible if there is evidence dated between January 21, 2008 (i.e. one year prior to receipt of the Veteran's informal increased rating claim) and October 26, 2008 which reflects that a 60 percent rating (i.e. a rating reflective of a 70 percent rating under DC 9434) is warranted. A review of medical records dated during this period indicates that the Veteran was not entitled to such a rating for his service-connected psychiatric disability for any period prior to October 27, 2008. VA treatment records dated from February to October 2008, a January 2008 letter from Frank Graf, M.D., and the Veteran's SSA disability records reveal that he reported that he felt "good and bad" and that he had approximately 2 to 3 "bad" days per week. He continued to feel depressed, his motivation was "sorely lacking," and he experienced sleep impairment and occasional feelings of hopelessness and worthlessness. However, he did not experience any irritability or suicidal ideation. He did not engage in many social activities as he did not like to go out, he did not like crowds, and he did not enjoy shopping. Rather, he spent his time watching television. He lived with his girlfriend and had last worked in January 2007, at which time he was employed as the manager of a deli. He was unable to work due to problems associated with his service-connected back disability, including limitations in standing and lifting and time lost from work. Also, he was limited in his ability to work due to depression, anxiety, low energy, paranoia, impaired concentration, and social isolation. He took medications for his psychiatric disability. Examinations revealed that the Veteran was casually dressed and had an "open" attitude, good eye contact, and an appropriate affect. However, his mood was euthymic/sub-euthymic/depressed and he presented as being a bit morose. He was diagnosed as having depression NOS and situational reactive depression and Global Assessment of Functioning (GAF) scores of 50 to 58 were assigned, indicative of serious to moderate impairment. A mental health professional who evaluated the Veteran for purposes of his claim for SSA disability benefits noted that as for the period from February 2007 to December 2008, his psychiatric impairment was "not severe." For example, he experienced only mild impairment in terms of his abilities to perform activities of daily living and maintain social functioning, concentration, persistence, and pace. The above evidence reflects that the symptoms of the Veteran's service-connected psychiatric disability did not approximate the criteria for a 70 percent rating under DC 9434 at any time during the period from January 21, 2008 to October 26, 2008. He was unemployed during that entire period and reported difficulties with maintaining gainful employment as a result of his psychiatric disability. He also experienced such symptoms as depression, anxiety, and impaired concentration. Thus, there is evidence of deficiencies in the areas of work, mood, and thinking. Also, some GAF scores reflected serious impairment. Nevertheless, the Veteran lived with his girlfriend and there was no evidence of any impaired family relationships due to his psychiatric disability. Also, there was no evidence of impaired judgment at any time during this period. Thus, the Veteran did not have deficiencies in most of the areas needed for a 70 percent rating under DC 9434 at any time from January 21, 2008 to October 26, 2008. The evidence also fails to show most of the symptoms listed as examples in the criteria for a 70 percent rating during this period. Specifically, the Veteran did not report or demonstrate any suicidal ideation, obsessed rituals, impaired speech, panic, impaired impulse control, spatial disorientation, or neglect of personal appearance or hygiene. Although he did consistently report depression, he was able to perform activities of daily living and his depression was not otherwise shown to affect his ability to function independently, appropriately, and effectively. In other words, entitlement to a 60 percent rating (i.e. a 70 percent rating adjusted due to aggravation by a service-connected disability) was not factually ascertainable during the period from January 21, 2008 to October 26, 2008. Thus, the date that the Veteran was evaluated by Maine Disability Determination Services (October 27, 2008) is the earliest possible effective date for the increased 60 percent rating. In his June 2010 notice of disagreement and an August 2012 letter, the Veteran's representative contended that the Veteran was entitled to an increased rating for the service-connected psychiatric disability since April 8, 2004 or September 21, 2006. However, she did not provide any explanation as to why a 60 percent rating was warranted from these dates. Accordingly, in light of the above, there is no basis for an effective date prior to October 27, 2008. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. The benefit-of-the-doubt doctrine is therefore not helpful to the Veteran, and the appeal for an effective date earlier than October 27, 2008, for the award of a 60 percent rating for depressive disorder NOS must be denied. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57. ORDER Entitlement to an effective date earlier than October 27, 2008, for the award of a 60 percent rating for depressive disorder NOS is denied. ______________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs