Citation Nr: 1752408 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-16 552A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an effective date earlier than July 7, 2004, for the grant of service connection for mood disorder with depressive features. 2. Entitlement to an increased rating for service-connected mood disorder with depressive features, including an initial rating in excess of 30 percent prior to June 6, 2016, and a rating in excess of 70 percent thereafter. 3. Entitlement to a rating in excess of 10 percent for service-connected residuals of knife wound to the right arm with laceration of brachial artery. REPRESENTATION Appellant represented by: Andrew L. Wener, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1968 to May 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decisions issued in February 2011, December 2011, and December 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) above. In June 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Travel Board hearing. A transcript of the hearing is associated with the claims file. This appeal was previously before the Board in October 2016, at which time the appeal included the claims listed on the first page of this decision, as well as the claim of entitlement to service connection for ischemic heart disease (IHD). The Board denied entitlement to service connection for IHD and, thus, that claim is no longer on appeal. However, the Board remanded the other claims on appeal for additional evidentiary development. The Board finds there has been substantial compliance with its October 2016 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no violation of Stegall v. West, 11 Vet. App. 268 (1998) when the examiner made the ultimate determination required by the Board's remand). Review of the record show that, in August 2016, the RO granted entitlement to TDIU and DEA benefits, effective June 16, 2016, after which the Veteran submitted a timely notice of disagreement (NOD) as to the effective date assigned for those benefits. In March 2017, the RO also granted service connection for peripheral neuropathy of the right upper extremity and awarded an initial 10 percent rating, effective June 22, 2011. The Veteran subsequently submitted a timely NOD as to the initial rating and effective date assigned to the peripheral neuropathy disability. While the RO has not yet issued a statement of the case (SOC) addressing those issues, the Veterans Appeals Control and Locator System (VACOLS) shows the RO has acknowledged receipt of the NOD and additional action is pending. Thus, the Board will not take jurisdiction over those issues at this time. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An August 2015 Board decision awarded an effective date of July 7, 2004, but no earlier, for the grant of service connection for mood disorder with depressive features. 2. The Veteran did not file a motion for a notice of appeal to the United States Court of Appeals for Veterans Claims, file a motion with the Board requesting reconsideration of the August 2015 decision or that the decision be vacated, or file a motion alleging clear and unmistakable error in the August 2015 decision. 3. The December 2015 rating decision merely implemented the Board's final August 2015 decision and did not adjudicate any question of law or fact, thereby rendering the May 2016 notice of disagreement invalid. 4. For the entire period prior to and after June 16, 2016, the Veteran's mood disorder with depressive features has been manifested by a variety of symptoms, including sleep disturbance, depression, anxiety, variations in mood, anger and irritability, suicidal thoughts, impaired judgement, significant difficulty in interpersonal functioning, all of which fluctuated in frequency, but resulted in deficiencies in most areas, including interpersonal relations, judgement, thinking, and mood; however, total occupational or social impairment as a result of his symptoms is not shown. 5. The Veteran's service-connected residuals of knife wound to the right arm with laceration of brachial artery involves his dominant extremity and affects muscle group V; the related surgery wound required debridement, surgical repair of the lacerated artery and prolonged hospitalization. 6. Residuals of the residuals of knife wound to the right arm with laceration of brachial artery have included consistent complaints of weakness, lowered threshold of fatigue, and fatigue-pain, with evidence of persistent but slight (4/5) weakness in the right elbow and additional notations of slight muscle atrophy above the elbow and loss of power in his right arm. CONCLUSIONS OF LAW 1. The Board's August 2015 decision that awarded an effective date of July 7, 2004, but no earlier, for the grant of service connection for mood disorder with depressive features is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. The May 2016 notice of disagreement purporting to appeal the effective date assigned in the December 2015 rating decision, which effectuated the final August 2015 Board decision) is not valid and raises no question of law or fact to be decided. 38 U.S.C. §§ 7104, 7105 (West 2012); 38 C.F.R. § 20.1103 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The criteria for an initial 70 percent rating for mood disorder with depressive features have been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9435 (2017). 4. The criteria for a rating in excess of 70 percent for mood disorder with depressive features for any time period on appeal have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 4.7, 4.130, Diagnostic Code (DC) 9435 (2017). 5. The criteria for a 30 percent rating, but no higher, for residuals of knife wound to the right arm with laceration of brachial artery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.56, 4.73, Diagnostic Code (DC) 5306-5305 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date Claim - Anxiety Disorder The Veteran is seeking an earlier effective date for the grant of service connection for mood disorder with depressive features. For reasons explained below, the Board finds the Veteran's claim must be dismissed. On July 7, 2004, the Veteran filed a claim for various benefits, including service connection for PTSD and depression. The RO denied the Veteran's claim in a November 2004 rating decision. In January 2005, the Veteran requested that VA reconsider the claim of service connection for depression and, in August 2005, the RO again denied the Veteran's claim. The Veteran perfected an appeal as to that claim and, in a December 2010 decision, the Board granted service connection for mood disorder with depressive features. Thereafter, in a February 2011 rating decision, the RO implemented the Board's grant of service connection for mood disorder with depressive features and assigned an initial 30 percent rating, effective January 10, 2005, the date of receipt of his request for reconsideration of the service connection claim. The Veteran subsequently perfected an appeal as to the initial rating and effective date assigned to his mood disorder and both claims were certified to the Board for consideration. In an August 2015 decision, the Board granted the Veteran's earlier effective date claim and determined that July 7, 2004, was the proper effective date for the grant of service connection for a mood disorder. The Board also specifically noted that an effective date prior to July 7, 2004 was not warranted because a claim for that benefit was not filed prior to that date. Notably, VA Form 4597, Board of Veterans' Appeals Notice, was attached to that decision. [In the August 2015 decision, the Board remanded the issue of entitlement to an increased rating for his mood disorder, which has been returned to the Board for consideration and will be considered below.] Thereafter, the RO issued a December 2015 rating decision which implemented the Board's decision as to the proper effective date for the grant of service connection for mood disorder with depressive features, i. e., awarded an initial 30 percent rating for mood disorder with depressive features, effective July 7, 2004. In May 2016, the Veteran submitted a VA Form 21-0958, Notice of Disagreement, in which he stated he wanted to appeal the effective date and disability rating assigned for his mood disorder in the May 2016 rating decision. Because the increased rating claim was already on appeal, the RO subsequently issued an SOC only adjudicating the issue of entitlement to an effective date earlier than July 7, 2004 for the grant of service connection for mood disorder with depressive features, after which the Veteran perfected an appeal as to that issue. See July 2016 SOC; August 2016 VA Form 9. While the RO has certified the issue of entitlement to an effective date earlier than July 7, 2004 for the grant of service connection for mood disorder with depressive features, the Board finds the issue must be dismissed, as it violates the rule of finality. In general, Board decisions are final as of the date of issuance and mailing. 38 U.S.C.A. § 7103; 38 C.F.R. § 20.1100. A final Board decision can be challenged in four ways. First, the Court can review a Board decision where the appellant files a Notice of Appeal (NOA) to the Court within 120 days of notice of the Board decision. Second, the Board can reconsider a Board decision where the appellant files a motion for reconsideration of the decision. Third, the Board can vacate a Board decision where the appellant files a motion to vacate the decision. Fourth, a motion can be filed for revision of a Board decision based on clear and unmistakable error (CUE) in the decision. 38 U.S.C. § 7266; 38 C.F.R. § 20.1403; Rosler v. Derwinski, 1 Vet. App. 241, 245-46 (1991); Harris v. Nicholson, 19 Vet. App. 345, 348 (2005). The United States Court of Appeals for Veterans Claims (Court) held that appellants are prohibited from collaterally attacking a prior final rating or Board decision by filing a freestanding earlier effective date claim, explaining that, once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, the Veteran must timely appeal the VA rating decision or Board decision that assigned the effective date in question. If an untimely freestanding claim for an earlier effective is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. In this case, the August 2015 decision reflects that the Board specifically considered whether the Veteran was entitled to an effective date earlier than July 7, 2004, for the grant of service connection for mood disorder with depressive features. Neither the Veteran nor his attorney filed an NOA with the Court, filed a motion with the Board requesting reconsideration of the August 2015 decision or that the decision be vacated, or filed a motion alleging CUE in the August 2015 decision. As a result, the August 2015 Board decision became final. Consequently, the Veteran's attempt in his May 2016 NOD to attack the finality of the Board's final August 2015 decision as to the effective date of service connection for his mood disorder is not permissible under Rudd. In this regard, the Board notes that filing a timely NOD following a rating decision would normally initiate the appeal process; however, the December 2015 rating decision was non-adjudicative, in that it made no decision on any question of law or fact, but merely implemented the Board's decision as to the proper effective date for the grant of service connection for the mood disorder. Indeed, the December 2015 rating decision did not adjudicate a question of law or fact that was appealable, thereby rendering the May 2016 NOD invalid and/or a legal nullity. As a result, there is no error of fact or law with respect to the earlier effective date issue before the Board at this time. See 38 U.S.C. § 7105 (the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed). Indeed, the appeal as to the issue of entitlement to an effective date earlier than July 7, 2004 for the grant of service connection for mood disorder with depressive features is without legal merit and must be denied. See Rudd, 20 Vet. App. at 296; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Increased Rating Claims Anxiety Disorder The Veteran is seeking an increased rating for service-connected mood disorder with depressive features, which was assigned an initial 30 percent rating from July 7, 2007, to June 15, 2016, and a 70 percent rating from June 16, 2016. Mood disorders are evaluated under 38 C.F.R. § 4.130, DC 9435 and the General Rating Formula for Mental Disorders. After review of the lay and medical evidence of record, the Board finds the Veteran's mood disorder warrants a 70 percent rating, but no higher, throughout the appeal period, i.e., from July 7, 2007. Indeed, the preponderance of the evidence reflects that the Veteran has consistently experienced serious symptoms throughout the appeal period which have resulted in deficiencies in most areas of his life, including social relations, judgement, thinking, and mood. At the outset, the Board notes that the RO increased the Veteran's disability rating from 30 to 70 percent effective June 16, 2016, based upon the findings of the June 2016 VA examination which it determined reflected a worsening of symptoms that more nearly approximated a 70 percent rating. The August 2016 rating decision specifically noted that the Veteran's symptoms included suicidal ideation, depressed mood, flattened affect, disturbances in motivation and mood, panic attacks, impaired impulse control, chronic sleep impairment, suspiciousness, mild memory loss, and inability to establish and maintain effective relationships. The Board's review of the record reveals that the Veteran has manifested all of the foregoing symptoms and manifested deficiencies in most areas throughout the appeal, which supports the grant of an initial 70 percent rating since July 7, 2007. Indeed, the preponderance of the evidence shows the Veteran has reported having suicidal thoughts throughout the appeal period. On several occasions, he reported that his suicidal thoughts were constant and occurred daily but on other occasions, he stated that his suicidal thoughts were passive and only occurred at times. See e.g., VA treatment records dated July 2004, September 2012, January and November 2013, May and August 2015; VA examination reports dated December 2009, May 2012, and June 2016; May 2015 private treatment record from Dr. Ennis. While the frequency of his suicidal thoughts has varied during the appeal period, the Board finds probative that he has endorsed having suicidal thoughts since July 2007, which is indicative of a serious impairment in thinking that has persisted during the appeal. The Board notes that the Veteran's thought process has generally been described as organized, goal-directed, and linear and he has also generally denied having delusions, paranoia, and hallucinations. However, he has endorsed hearing voices at various times during the appeal and has also consistently reported having flashbacks and daytime intrusive thoughts, all of which are also indicative of a serious impairment in his thought content which has been present throughout the appeal. See e.g., VA treatment records dated May 2005, May 2006, January and November 2013. The evidence shows the Veteran has also consistently demonstrated disturbances in his motivation and mood since July 2007. His mood has variously been described as depressed, dysphoric, anxious and frustrated, while his affect has also been described as blunted, flat, constricted, and subdued. See generally VA treatment records and examination reports. He has also consistently reported feeling depressed with up and down mood and crying spells, and he has also reported feeling stressed, nervous and tense. In December 2009 and June 2016, he reported that his nervousness reached the level of a panic attack. He has also stated that his symptoms interfere with his energy and ability to concentrate. See e.g., VA treatment records dated January and May 2006, February 2008, October 2009, September 2010, August and September 2011, February and November 2013, July and December 2014, and January 2015; April 2006, VA examination reports dated December 2009 and May 2012. The Veteran has also consistently reported feeling angry and irritable. See VA treatment records dated May 2005, January 2006, February 2013, March 2013; VA examination reports dated May 2012. On one occasion he reported that he felt aggressive towards his co-workers and, while there is no evidence of episodes of violence, clinicians have described his impulse control as fair, average, and poor. See e.g., VA treatment records dated January 2006 and January 2013; May 2009 VA examination report. In this regard, the evidence shows the Veteran has generally denied having homicidal thoughts or ideations but he reported having passive homicidal ideations in July 2004 and December 2014. The Veteran's judgement and insight have also varied throughout the appeal and have been described as good, fair, and poor. See e.g., VA treatment records dated January 2006, October 2009, July 2010, September 2011, June 2012, November 2013; VA examination report dated June 2016. The Board notes the evidence reflects that his medications help his energy level, irritability, and concentration; however, as noted, he has continued to endorse having problems with energy, anger, and concentration throughout the appeal period. See e.g., VA treatment records dated May 2006, December 2009, June 2012; December 2009 VA examination report. The Veteran has also been described as withdrawn, isolated, emotionally distant, and suspicious throughout the appeal. See e.g., VA treatment records dated May 2006, October and November 2008, October 2009, September 2010, July 2011, April 2013, May and December 2014, and May 2015; see also VA examination reports December 2009 and June 2016. He has also variously reported not having any activities and interests, although the evidence shows he attends a group meeting and occasionally attends church. See e.g., VA treatment records dated July 2011 and January and March 2013; see also VA examination reports dated December 2009, May 2012, and June 2016. This evidence reflects that the Veteran's ability to interact with others is diminished and represents an impairment in social functioning. The preponderance of the evidence shows the Veteran's mood disorder has also been manifested by a sleep impairment with nightmares several times a week. See generally VA treatment records and examination reports. The record also contains lay and medical evidence of problems with his short-term memory at various times during the appeal. See e.g., May 2005 VA treatment record and VA examination reports dated December 2009, May 2015, and June 2016. In evaluating this claim, the Board notes that the Veteran has generally been described as well-groomed, alert and oriented, with normal speech. This evidence shows that, while severely impaired, the Veteran's mood disorder has not resulted in a total impairment in functioning, particularly as it pertains to communication, orientation to time and place, and the ability to perform activities of daily living. The Veteran has also remained married during the appeal and retained good relationships with his daughters, siblings, and a couple of friends. See e.g., VA treatment records dated November 2009, July 2011, November 2014, and May 2015. The Board notes that, in June 2016, he reported having a conflict with his wife and daughters but, overall, he has retained effective relationships with his family, which reflects that his social functioning is not totally impaired. However, as detailed above, the preponderance of the evidence reflects that his overall disability picture has been manifested by serious symptoms which, while varied in frequency, have been present on a fairly consistent basis since July 2007 and resulted in deficiencies in social relations, judgement, thinking, and mood. In making this determination, the Board finds particularly probative that the Veteran's mood disorder has been manifested by suicidal thoughts, disturbances in motivation and mood, persistent depression, irritability and anger, and diminished social functioning throughout the appeal period, with occasional complaints of audio hallucinations and evidence of impaired judgement and impulse control. Therefore, after resolving all reasonable doubt in favor of the Veteran, the Board finds that a 70 percent rating is warranted throughout the appeal period, i.e., since July 7, 2007. However, a rating higher than 70 percent is not warranted at any time during the appeal period, including prior to or after June 16, 2016, as the Veteran's symptoms are not shown to have resulted in total occupational and social impairment. Indeed, while the Veteran's symptoms have resulted in deficiencies in many areas, the Veteran has maintained good relationships with family members and retained his ability to interact with others, albeit on a limited basis. His thought processing and communication skills have also remained intact and he has not demonstrated spatial disorientation. As there is no evidence or indication of a gross or total impairment in overall functioning, the Board finds a higher, 100 percent rating is not warranted at any point in this case. As noted, in making this determination, all reasonable doubt has been resolved in favor of the Veteran. Right Arm Muscle Disability In July 2011, the Veteran filed a claim seeking an increased rating for service-connected residuals of knife wound to the right arm with laceration of brachial artery (hereinafter referred to as residual right arm disability), which is rated 10 percent disabling under 38 C.F.R. § 4.73, DC 5306-5305. The hyphenated diagnostic code in this case reveals that DC 5306 is assigned for injury to muscle group IV and DC 5305 is assigned for injury to muscle group V as a residual condition. See 38 C.F.R. § 4.27. The record reflects that, during service, the Veteran was stabbed in his right arm, after which he was hospitalized for debridement of the wound and anastomosis (connection) of the lacerated right brachial artery. The Veteran remained hospitalized for two to three months in order for physicians to continue to evaluate his disability and, while he subsequently returned to duty, he stated that his right upper extremity was weak and painful during movement and activity. He also complained of numbness in his right middle finger. See December 1970 VA examination report. At this juncture, the Board notes that service connection has been awarded for a residual scar and peripheral neuropathy associated with the knife wound to the right arm. See rating decisions dated August 2001 and March 2017. The RO assigned separate ratings for those disabilities and the propriety of those ratings is not at issue in this appeal. Therefore, the Board's discussion in this decision will only involve consideration of the manifestations and functional impairment caused by the muscle injury in the right arm. The evidence dated during the appeal period, i.e., since July 2011, reflects that the Veteran's residual right arm disability affects his dominant extremity (as he is right-handed) and involves muscle group V, which impacts the function and flexion of the elbow. The preponderance of the evidence shows that the residual right arm disability affects the muscle substance and function of the arm, as the Veteran continues to experience pain beneath the residual scar and the muscles easily fatigue when lifting. See e.g., VA examination reports dated August 2011 and May 2012. The preponderance of the evidence also shows that the Veteran has experienced the following cardinal signs and symptoms of a muscle disability: weakness, lowered threshold of fatigue, and fatigue-pain, all of which have been consistent throughout the appeal period. See VA examination reports dated August 2011, May 2012, and February 2017; see also VA treatment records. The February 2017 VA examiner also noted that the Veteran experienced loss of power in his right arm. The Veteran has also demonstrated slightly decreased muscle strength in right elbow flexion and extension, as his muscle strength testing revealed less than normal strength (4/5) during all of the VA examinations of record. See February 2017 VA Muscle and Peripheral Nerves examination reports. There was also evidence of slight muscle atrophy in the right arm above the elbow, which has measured no more than 2 centimeters during the appeal period. See VA examination reports dated August 2011 and May 2012. Muscle atrophy was not noted during the February 2017 VA examination, however. In summary, the preponderance of the evidence shows that the Veteran's residual right arm disability historically involved a penetrating wound that required debridement, surgical repair of a lacerated artery and prolonged hospitalization for treatment. The lay and medical evidence relevant to this appeal period documents consistent complaints of cardinal signs and symptoms of muscle disability, including weakness, lowered threshold of fatigue, and fatigue-pain. There is also evidence of slight (4/5) weakness in the right elbow, which has been persistent during the appeal period, with additional notations of slight muscle atrophy above the elbow and loss of power in his right arm. Given the evidence showing the Veteran's disability historically involved debridement and prolonged hospitalization, as well as the current evidence of consistently decreased strength, endurance, and pain, with occasional notations of muscle atrophy in the right (dominant) arm, the Board will resolve all reasonable doubt in favor of the Veteran and find that his disability has more nearly approximated a moderately severe disability as contemplated by a 30 percent rating under DC 5305 throughout the appeal period. 38 C.F.R. § 4.56 (c), (d)(3). A rating higher than 30 percent is not warranted at any point, however, as the evidence does not reflect that the Veteran's residual right arm disability has resulted in a severe muscle injury with symptoms such as soft flabby muscles in wound area, muscles swell and harden abnormally in contraction, or severe impairment of function, strength, or endurance. 38 C.F.R. § 4.56 (d)(4). For the foregoing reasons, the Board finds the Veteran's service-connected residual right arm disability more nearly approximates a moderately severe muscle injury, which warrants a 30 percent rating, but no higher, under DC 5305, throughout the appeal period. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. ORDER The appeal as to the issue of entitlement to an effective date earlier than July 7, 2004 for the grant of service connection for mood disorder with depressive features is dismissed. An initial 70 percent rating for mood disorder with depressive features is granted prior to June 16, 2016. A rating in excess of 70 percent for mood disorder with depressive features for the entire time period on appeal is denied. A 30 percent rating, but no higher, for residuals of knife wound to the right arm with laceration of the brachial artery, is granted. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs