Citation Nr: 1621638 Decision Date: 05/31/16 Archive Date: 06/08/16 DOCKET NO. 14-43 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for major depressive disorder. 2. Entitlement to an effective date earlier than July 24, 2007, for the assignment of a separate rating for limitation of motion of the right shoulder. 3. Entitlement to an effective date earlier than July 24, 2007, for the assignment of a separate rating for limitation of motion of the left shoulder. 4. Entitlement to an effective date earlier than July 24, 2007, for the grant of a 20 percent rating for service-connected right knee meniscus tear, status post surgery. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active service from July 1980 to July 1983, as well as additional unverified service in the United States Army National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2011 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's major depressive disorder has been manifested by symptoms productive of functional impairment comparable to occupational and social impairment with occasional decrease in work efficiency. 2. A claim for an increased rating for the service-connected right shoulder disorder was received on July 24, 2007; it is not factually ascertainable that a separate rating for limitation of motion of the right shoulder occurred during the one year prior to that date. 3. A claim for an increased rating for the service-connected left shoulder disorder was received on July 24, 2007; it is not factually ascertainable that a separate rating for limitation of motion of the left shoulder occurred during the one year prior to that date. 4. A claim for an increased rating for the service-connected right knee meniscus tear, status post surgery, was received on July 24, 2007; it is not factually ascertainable that the increase in severity warranting a higher rating for the right knee meniscus tear occurred during the one year prior to that date. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for major depressive disorder have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2015). 2. The criteria for an effective date earlier than July 24, 2007, for the assignment of a separate rating for limitation of motion of the right shoulder have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 3. The criteria for an effective date earlier than July 24, 2007, for the assignment of a separate rating for limitation of motion of the left shoulder have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 4. The criteria for an effective date earlier than July 24, 2007, for the grant of a 20 percent rating for the service-connected right knee meniscus tear, status post surgery, have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS When VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015). The Veteran's claim concerning the proper disability rating to be assigned to his service-connected major depressive disorder arises from his disagreement with the initial disability rating assigned to this condition following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. 38 C.F.R. § 3.159(b)(3) (2015); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, 38 U.S.C. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate a claim upon receipt of a notice of disagreement with the effective date assigned by a RO for a compensation award. 38 C.F.R. § 3.159(b)(3) (2015); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Once a decision has been made awarding service connection, a disability rating, and an effective date, § 5103(a) notice has served its purpose, as the claim has already been substantiated. Sutton v. Nicholson, 20 Vet. App. 419 (2006). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, to include obtaining VA treatment records and affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Accordingly, the Board will address the merits of the Veteran's claims. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation 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, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks an initial rating in excess of 30 percent for major depressive disorder. In February 2011, the Board granted service connection for major depressive disorder as secondary to his service-connected knee and bilateral shoulder disabilities. A December 2011 rating decision effectuated the Board's February 2011 decision and granted a 30 percent rating, effective November 18, 2008. The Veteran's service-connected major depressive disorder is rated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9434. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A 30 percent evaluation is provided for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Board notes that the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including (if applicable) those identified in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)). See Mauerhan, 16 Vet. App. 436. Within the DSM-IV, Global Assessment Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). While not determinative, a GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). According to DSM-IV, a GAF score of 31 to 40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood, (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41 to 50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score between 51 and 60 indicates that the Veteran has "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." GAF scores ranging between 61 and 70 reflect "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships." A GAF score of 71 to 80 indicates, if symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). See DSM-IV. A November 2008 letter from the Veteran's private physician, Dr. Ortiz, indicates that the Veteran suffered from depression. He stated that due to long periods of inactivity and bed rest (as a result of his shoulder and knee conditions), other problems, such as depression, had manifested. He indicated that the Veteran cried daily, that he was irritable, and he believed that his life was worthless. He further stated that his physical problems brought on emotional problems which had, in turn, affected his relationships. On VA examination in January 2009, the Veteran reported that he was married and the father of three children. He complained of the following symptoms: depressed mood, trouble sleeping, fatigue, poor personal hygiene, socially withdrawn, and feelings of worthlessness. On psychiatric examination, he was noted to be clean. He had a constricted affect. His mood was described as "tired." His attention was intact. He was oriented to person, time and place. His thought process was tangential. His thought content was unremarkable. There were no delusions or hallucinations. He did not display inappropriate behavior. He did not have obsessive/ritualistic behavior. He did not have panic attacks. He denied any homicidal or suicidal thoughts. His impulse control was poor. He had had episodes of violence. He was able to maintain minimum personal hygiene. His immediate, recent and remote memory was normal. The diagnosis was depressive disorder. A GAF score of 65 was assigned. In a January 2009 VA psychiatric note, the Veteran reported that he was depressed with poor appetite, loss of concentration, feelings of worthlessness and anxiety. He stated that his problems had been building up for many years due to his worsening physical health. The diagnosis was major depressive disorder, single episode, severe without psychosis. On VA examination in September 2011, it was noted that the Veteran was living with his wife and youngest son. He was not currently working and had been retired since 1994. He indicated that maintained good family relations. He was active in his church. He enjoyed watching television. He denied a history of suicidal attempts. He denied a history of violence or assaults. On psychiatric examination, the Veteran was noted to be clean and casually dressed. His speech was spontaneous. He was cooperative and attentive. His affect was normal. His mood was anxious. His attention was intact. He was oriented to person, time and place. His thought process was manifested by an overabundance of ideas. His though content was manifested by a preoccupation with one or two topics. He did not have any delusions. There were no hallucinations. He did not display any inappropriate behavior. He did display any obsessive/ritualistic behavior. He did not have any panic attacks. There were no homicidal or suicidal thoughts. His impulse control was good. He was able to maintain minimum personal hygiene. His remote and immediate memory was normal. His recent memory was mildly impaired. He was diagnosed as having depressive disorder NOS. A GAF score of 65 was assigned. The examiner stated that the Veteran's mental disorder was not manifested by total occupational and social impairment. The examiner felt that the Veteran's symptoms did result in deficiencies in family relations, work and mood in that his mood instability could limit his social functioning with family members and in a work setting. The examiner also felt that the Veteran had reduced reliability and productivity due to his mental disorder. VA mental health treatment records dated from March 2012 to November 2014 show that the Veteran reported increases in anxiety at certain periods of time. However, the records show that the Veteran had adequate hygiene and was appropriately dressed. He was behavior was normal and cooperative. He was oriented in all spheres. He was alert and attentive. His mood was euthymic. His affect was expressive, stable and appropriate with a full-range. There was no abnormality of perception. There was no unusual thought content. His thought process was coherent/logical and goal-directed. His insight and judgment were fair and his memory was intact. There were no suicidal ideas or plans. GAF scores ranging from 55 to 60 were assigned. Applying the psychiatric symptomatology to the rating criteria noted above, the Veteran's major depressive disorder does not more nearly approximate the criteria for a 50 percent or higher rating. The record describes a fairly consistent pattern of symptomatology and manifestations productive of no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as opposed to reduced reliability and productivity. While the September 2011 VA examiner indicated that the Veteran's symptoms resulted in deficiencies in family relations, work and mood as well as reduced reliability and productivity, the reported symptomatology at the examination did not support such a severity in his symptoms to warrant a higher rating. The Board acknowledges that the Veteran experiences significant anxiety and depression but such symptoms are adequately compensated by the current 30 percent rating under Diagnostic Code 9434, because a rating at this level presumes that he will experience these symptoms, and, in fact, they are expressly mentioned in the diagnostic code. The evidence does not otherwise show disturbance of affect or mood, speech suggestive of disorders of thought or perception, difficulty understanding commands, or significant impairment of memory, judgment, or abstract thinking. The clinical evidence of record consistently shows that the Veteran was not suicidal or homicidal. Moreover, the evidence shows that the Veteran has the ability to establish and maintain effective relationships as shown by his positive relationships with his family. Therefore, his maintenance of relationships under these circumstances is inconsistent with the interpersonal relationship skills of a person suffering major depressive disorder symptomatology warranting a 50 percent disability rating which requires symptoms at a level of disability equivalent to reduced reliability and productivity. The Board also notes that GAF scores of 55 to 65 have been assigned. GAF scores ranging between 61 and 70 reflect some mild symptoms, while GAF scores of 51 to 60 indicates the Veteran has moderate symptoms or moderate difficulty in social, occupational, or school functioning. The Board finds that these GAF scores are commensurate with the assigned 30 percent disability rating and characteristic of the mild to moderate symptomatology exhibited and observed. Accordingly, the Board finds that the Veteran's impairment due to major depressive disorder is more consistent with a 30 percent rating and a higher rating is not warranted at any time during the appeal period. The provisions of 38 C.F.R. § 3.321(b) provide that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for the service-connected disability, an extra-schedular evaluation will be assigned. Consideration of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The first step is to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. If the adjudicator determines that this is so, the second step of the inquiry requires the adjudicator to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Id. at 116. Finally, if the first two steps of the inquiry have been satisfied, the third step requires the adjudicator to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether an extra-schedular rating is warranted. Id. In this case, the Board finds the evidence in this case does not present such an exceptional disability picture that the available schedular evaluations for the service-connected depression are inadequate. In this regard, the Board notes that the rating criteria reasonably describe the claimant's disability level and symptoms. Thun, 22 Vet. App. at 115. Accordingly, referral for consideration of an extraschedular rating is not warranted. Effective Date Claims Except as otherwise provided, the effective date of an evaluation and award of compensation will be the date of receipt of claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The general rule with respect to the effective date of an award of increased compensation is that the effective date of award, "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). The effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule applies, however, where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of 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 date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the 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); VAOPGCPREC12-98 (1998). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen: (1) A report of examination or hospitalization by VA or uniformed services, where such report relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission; (2) Evidence from a private physician or layman, with the date of receipt of such evidence accepted when the evidence is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits; (3) When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by VA of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals. 38 C.F.R. § 3.157(b). Service connection for a bilateral shoulder condition (post-operative residuals of right and left shoulder dislocations) was granted in a March 1990 rating decision. Service connection for residuals of a right knee meniscus tear, status post surgery, was granted in an October 1997 rating decision. A review of the record, however, reveals that the Veteran had several increased rating claims pending throughout the years following the initial claims, all of which were finally adjudicated. 38 U.S.C.A. § 7105 (West 2002). The Veteran's most recent claim for increased ratings for his service-connected right knee meniscus tear and for his right and left shoulder disabilities was received at the RO on July 24, 2007. The RO denied the Veteran's claims for increased ratings by way of a July 2008 rating decision. The Veteran perfected an appeal as to that decision, and in February 2011, the Board issued a decision granting a 20 percent rating for the right knee meniscus tear, a separate 30 percent rating for limitation of motion of the right shoulder, and a separate 20 percent rating for limitation of motion of the left shoulder. The Board's decision was effectuated by a March 2011 rating decision with each disability assigned an effective date of July 24, 2007 (the date of receipt of the claims for increase). The Veteran contends that an earlier effective date for each of these ratings is warranted. As noted above, the Veteran's claims for increased ratings for his right knee and bilateral shoulder disabilities was received on July 24, 2007. The only mechanism within the law under which the Board could award an earlier effective date for any of the disabilities on appeal is through a finding that it was factually ascertainable that an increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to date of receipt of 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 date of receipt of the claim, the increase is effective the date of receipt of the claim. If the increase occurred after the date of receipt of the 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); VAOPGCPREC12-98 (1998). A review of the claims folder reveals that there is no pertinent evidence of record within a year prior to the claims. Consequently, the Board finds that it is not factually ascertainable, based on the evidence of record, that any increase in disability the right knee or either shoulder occurred within the year prior to the Veteran's formal July 2007 claim. In sum, the evidence fails to establish that the disabilities at issue met the criteria for the ratings assigned prior to July 24, 2007. In reaching this decision the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to these claims because the preponderance of the evidence is against the claims. ORDER An initial rating in excess of 30 percent for major depressive disorder is denied. An effective date earlier than July 24, 2007, for the assignment of a separate rating for limitation of motion of the right shoulder is denied. An effective date earlier than July 24, 2007, for the assignment of a separate rating for limitation of motion of left shoulder is denied. An effective date earlier than July 24, 2007, for the assignment of a 20 percent rating for service-connected right knee meniscus tear, status post surgery, is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs