Citation Nr: 1753547 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-02 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date prior to December 6, 2013, for the assignment of an initial 50 percent rating for mood disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1983 to July 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2009 by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for adjustment disorder with mixed anxiety and depressed mood and assigned an initial 10 percent rating, effective September 25, 2008. Thereafter, the Veteran appealed with respect to the propriety of the initially assigned rating. In September 2013, the Board remanded the initial rating claim for the issuance of a statement of the case. Thereafter, in connection with the issuance of the January 2014 statement of the case, the RO recharaterized the Veteran's disability as mood disorder, and assigned an initial 30 percent rating, effective September 25, 2008, and a 50 percent rating, effective December 6, 2013. In his January 2014 substantive appeal, the Veteran limited his appeal to the sole issue of entitlement to an effective date prior to December 6, 2013, for the assignment of an initial 50 percent rating for mood disorder. Consequently, the Board has characterized the issue as shown on the title page. FINDING OF FACT It is factually ascertainable that the Veteran's mood disorder resulted in manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity as of the September 25, 2008, date of service connection. CONCLUSION OF LAW The criteria for an effective date of September 25, 2008, for the assignment of an initial 50 percent rating for mood disorder have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.400, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9440 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant an effective date of September 25, 2008, for the assignment of an initial 50 percent rating for mood disorder herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The assignment of effective dates of awards is generally 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 a claim for service connection or for an increase of compensation "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. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increase compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. This claim is subject to the more specific criteria under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). "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. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the "[e]arliest 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)(2). The United States Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. As noted in the Introduction, the inquiry before the Board is whether there was a factually ascertainable increase in the severity of the Veteran's mood disorder prior to December 6, 2013, thus warranting a 50 percent rating. In this regard, disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that an initial 50 percent rating for his mood disorder is warranted as of the September 25, 2008, date of service connection due to the severity of his symptoms, to include anger/irritability, embarrassment, anxiety, depression, fearfulness, isolation, and impaired sleep. Prior to December 6, 2013, such disability was evaluated as 30 percent disabling under the criteria of DC 9440, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. In this regard, a 30 percent rating is warranted 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). A 50 percent rating is warranted when there is 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 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9440. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)). Pertinent to this appeal, a GAF score of 51 to 60 indicates 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). While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Parenthetically, the Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, which is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Based on the evidence of record, the Board finds that it is factually ascertainable that the Veteran's mood disorder resulted in manifestations, to include depression, fatigue, difficulties with concentration, anxiety, anger, sleep impairment, anhedonia, flattened affect, disturbances in mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, that more nearly approximate occupational and social impairment with reduced reliability and productivity as of the September 25, 2008, date of service connection. Regarding the Veteran's social functioning from September 25, 2008, to December 5, 2013, a May 2009 VA examination report indicates he lived with his wife and two daughters, of whom he was very proud. While the Veteran reported losing his temper and snapping at his wife on occassion, the record otherwise indicates the relationship was close and hallmarked by the couple supporting each other in relation to their respective disabilities. Aside from his family, the Veteran had limited social relationships. In this regard, while he was friendly with his co-workers, he was too fearful and embarrassed to see them for extended periods due to concerns regarding his service-connected bladder disorder. Indeed, the Veteran spent much of the 2009 examination explaining his sadness in relation to the inability to perform activities he previously loved, but no longer had the energy or ability to engage in. Turning to his occupational impairment, the record indicates the Veteran maintained employment as a human resource supervisor with a government agency from September 25, 2008, to December 5, 2013. Nevertheless, he reported that fear and anxiety related to his bladder disorder caused him to frequently step out of meetings. Additionally, he made excuses to avoid being alone with his colleagues and had a perception that such caused them to think he thought he was better than them. Ultimately, while the Veteran maintained employment, the available evidence indicates that he was experiencing moderate levels of anxiety and fear during this time. It is not reasonable to assume that these symptoms would not cause reduced reliability and productivity in an employment setting. Furthermore, the May 2009 examiner found the Veteran's symptoms were reflective of moderate social impairment and mild to moderate occupational impairment, and assigned a GAF score of 60, which is indicative of moderate symptoms, a finding that may be consistent with either a 30 or 50 percent rating, and the Veteran reported that his psychiatric symptomatology has been consistently stable from the date of his claim through the time period where an initial 50 percent rating has been assigned. Based on the foregoing, the Board finds, that given the Veteran's reduced social functioning and limited occupational comfort due to his psychiatric symptomatology, an initial 50 percent rating is warranted as of the September 25, 2008, date of service connection. In reaching such determination, the Board notes that the Veteran was not receiving psychiatric care for much of the period from September 25, 2008, to December 5, 2013, and he has reported that he was underreporting his symptoms to the May 2009 examiner. In this regard, the Board has accepted his statement and has resolved reasonable doubt in his favor to award a higher 50 percent rating. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An effective date prior to September 25, 2008, for the assignment of an initial 50 percent rating for mood disorder is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs