Citation Nr: 1752691	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  13-04 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to an effective date prior to May 10, 2002, for the grant of service connection for depressive disorder associated with sarcoidosis.

2. What rating is warranted for depressive disorder associated with sarcoidosis from May 10, 2002?

3. For the period from November 30, 1999 to December 6, 2000, entitlement to a total disability rating based on individual unemployability. 

4. For the period from December 7, 2000 to May 9, 2002, entitlement to a total disability rating based on individual unemployability on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. Carsten, Counsel


INTRODUCTION

The Veteran served on active duty from July 1982 to March 1988. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. 

In October 2015, VA determined that the claimant was competent. That determination resolved the pending appeal on competency. 

In February 2016, the Board remanded the appeal so that a videoconference hearing could be scheduled. The requested hearing was held before the undersigned Veterans Law Judge in March 2017. 

This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. 

The issues regarding what rating is warranted for depressive disorder since May 10, 2002; and entitlement to a total disability rating based on individual unemployability on an extraschedular basis for the period from December 7, 2000 to May 9, 2002 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. On May 10, 2002, VA received a claim of entitlement to service connection for depression; there are no communications or other evidence prior to this date that could be construed as a claim for service connection for an acquired psychiatric disorder. 

2. For the period from November 30, 1999 to December 6, 2000, the Veteran's only service-connected disability was sarcoidosis rated as 60 percent disabling; and the preponderance of the evidence shows this disorder was of sufficient severity to preclude substantially gainful employment. 


CONCLUSIONS OF LAW

1. The criteria for an effective date prior to May 10, 2002 for the grant of service connection for depressive disorder are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 

2. For the period from November 30, 1999 to December 6, 2000, the criteria for a total disability rating based on individual unemployability are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(a) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).


Analysis

Effective date for the grant of service connection for depressive disorder

In a September 2008 rating decision VA granted entitlement to service connection for a dysthymic disorder (now characterized as a depressive disorder) effective May 10, 2002. The Veteran disagreed with the effective date and subsequently perfected this appeal. He essentially contends that because depression is associated with sarcoidosis, the effective date should be the same for both disorders. The effective date for the grant of service connection for sarcoidosis is November 30, 1999. 

The assignment of effective dates of awards is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). More specifically, the effective date of an award of disability compensation for direct service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R.§ 3.400(b)(2)(i).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). A "claim" or "application" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2017). An informal claim is any communication indicating intent to apply for one or more benefits. The benefit being sought must be identified. 38 C.F.R. § 3.155 (2017). 

VA's regulations pertaining to "claims" were recently amended. These amendments apply to claims filed on or after March 24, 2015. The current appeal was pending prior to that date and the amended regulations, which are less favorable, are not for application. 

Review of the claims folder shows that on May 10, 2002, VA received a statement from the Veteran wherein he claimed entitlement to service connection for depression. 

In determining whether the Veteran is entitled to an earlier effective date for service connection, the Board must consider whether he filed a claim for a psychiatric disorder prior to May 10, 2002. On review, the evidence shows no communication or other submission prior to that date that could be construed as indicating an intent to seek or apply for service connection for a psychiatric disorder.

The Board observes that an original VA Form 21-526 was received in November 1999 for sarcoidosis, but that form did not include a claim for depression. At the videoconference hearing, the Veteran testified that he was told he had dysthymia in 1999. Review of VA medical records shows treatment for depression prior to 2002. Notwithstanding, the mere existence of medical records generally cannot be construed as an informal claim. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006).

On review, a claim of entitlement to service connection for depression was not received prior to May 10, 2002 and without evidence of a claim prior to that date there is simply no legal basis for assigning an earlier effective date. 

The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2017).  

Total disability rating based on individual unemployability

In March 2010, VA granted entitlement to a total disability rating based on individual unemployability effective from May 10, 2002. Historically, the Veteran was granted entitlement to service connection for sarcoidosis in a September 2008 rating decision and assigned a 60 percent rating effective from November 30, 1999, and a 30 percent rating from December 7, 2000. This rating decision also granted entitlement to depressive disorder and assigned a 70 percent rating from May 10, 2002. 

In an October 2008 notice of disagreement, the Veteran's then-representative initiated an appeal seeking higher initial ratings, and asserted entitlement to individual unemployability as part of these higher ratings. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a total disability based on individual unemployability claim is part of an increased rating claim when such claim is raised by the record. It involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Id. at 453-54. Therefore, the March 2010 rating decision which granted a total disability rating based on individual unemployability from May 10, 2002, effectively denied a total rating prior to that period. While certain adjudicative actions stemming from this appeal have framed the issue as entitlement to an effective date earlier than May 10, 2002 for the grant of individual unemployability, see November 2012 Statement of the Case, the issue is better framed as entitlement to a total disability rating based on individual unemployability prior to May 10, 2002. That said, the Board need not determine when the claim was filed, but rather, whether the criteria for the benefit have been met at any time since November 30, 1999. Based on the disposition herein, the Board has recharacterized the issues as set forth above. 

At his March 2017 videoconference hearing the Veteran argued that he met the criteria for individual unemployability in 1999. His representative noted that he met the schedular requirement for individual unemployability based on the 60 percent rating in effect for sarcoidosis. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities: provided that, if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

For the period from November 30, 1999 to December 6, 2000, the Veteran's only service-connected disability was sarcoidosis, rated as 60 percent disabling. Accordingly, he met the schedular criteria for individual unemployability. Id. The Veteran last worked in August 1999; hence, the question is whether he was unable to secure or follow a substantially gainful occupation solely as a result of his sarcoidosis. Id.

An October 1999 VA discharge summary indicates the Veteran's exercise tolerance had decreased to the point where it was difficult for him to walk one block and he had been unable to work since August 1999. 

A September 2000 medical statement for participation in a food stamp program indicates the Veteran was not physically able to work due to sarcoidosis with chronic fatigue, shortness of breath with minimal exertion and cough. The disorder's date of onset was listed as November 1999 and the condition was believed to be permanent. 

Records from the Social Security Administration indicate the Veteran was considered disabled from August 1999 due to a primary diagnosis of severe sarcoidosis. No secondary diagnoses were established. The Social Security decision indicates that "[d]ue to the claimant's impairments, including moderately severe to severe chronic disabling shortness of breath and fatigue, he is unable to perform the exertional sitting, standing, walking and lifting requirements of even sedentary work or sustain a full work week." 

On review, the evidence supports a finding that the Veteran's sarcoidosis alone was of such severity so as to preclude substantially gainful employment during the period from November 30, 1999 to December 6, 2000.  Hence, the criteria for a total disability rating based on individual unemployability are met for that term. 



ORDER

Entitlement to an effective date earlier than May 10, 2002 for the grant of service connection for depressive disorder is denied. 

For the period from November 30, 1999 to December 6, 2000, entitlement to a total disability rating based on individual unemployability is granted, subject to the laws and regulations governing the award of monetary benefits. 


REMAND

Increased rating for depressive disorder

In September 2008, VA granted entitlement to service connection for dysthymic disorder and assigned a 70 percent rating. The Veteran disagreed with the rating and perfected this appeal. 

The Veteran most recently underwent a VA psychiatric examination in February 2015. At the March 2017 videoconference hearing, the Veteran testified that his depression had worsened and he felt he should be rated 100 percent. 

Considering the Veteran's testimony, the Board finds that a current VA examination is needed. See 38 C.F.R. § 3.327 (2017). 

Extraschedular consideration for a total disability rating based on individual unemployability

As set forth, this decision grants entitlement to individual unemployability for the period from November 30, 1999 to December 6, 2000. A total disability rating based on individual unemployability was previously awarded effective May 10, 2002. Thus, the only remaining period for consideration is from December 7, 2000 to May 9, 2002. During this period, the Veteran's only service-connected disability was sarcoidosis, rated as 30 percent disabling. Consequently, he did not meet the schedular requirements under 38 C.F.R. § 4.16(a) during this remaining term. 

Notwithstanding, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the schedular standards. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b).

The evidence of record shows the Veteran has not worked since 1999 and given the information set forth above, the Board finds that referral for extraschedular consideration is warranted. 

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA psychiatric examination. The electronic claims folder must be available for review. In accordance with the latest worksheets for evaluating mental health disorders, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of service-connected depressive disorder. 

A complete rationale must be provided for any opinion offered.  If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training.

2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017).

3. Review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, implement corrective procedures at once. 

4. Refer the claim of entitlement to a total disability rating based on individual unemployability for the period from December 7, 2000 to May 9, 2002 to the Director, Compensation Service for extraschedular consideration. 

5. Upon completion of the requested development and any additional development deemed appropriate, readjudicate the issues of what rating is warranted for depressive disorder since May 10, 2002; and entitlement to a total disability rating based on individual unemployability for the period from December 7, 2000 to May 9, 2002 on an extraschedular basis. If any benefit sought on appeal remains denied, the appellant and his representative must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs