Citation Nr: 1800478 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 13-44 030A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date earlier than January 30, 2013, for the assignment of a 70 percent evaluation for persistent depressive disorder with anxious distress and panic disorder (previously characterized as an acquired mental condition, to include anxiety and depression). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel INTRODUCTION The Veteran served on active duty from October 1998 to August 2003 and February 2006 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision from the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, D.C. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2016. A transcript of that hearing has been associated with the claims file. The Board remanded the claim for further development in September 2016. That development has been completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT As of May 15, 2008, it was factually ascertainable that the Veteran's service-connected psychiatric disability was productive of occupational and social impairment with deficiencies in most areas, but it was not factually ascertainable that such an increase had occurred prior to that date. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for an effective date of May 15, 2008, for the assignment of a 70 percent evaluation for the Veteran's service-connected psychiatric disability have been met. 38 U.S.C. §§ 5101, 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400, 4.130, Diagnostic Code 9400 (2017). 2. The criteria for an effective date earlier than May 15, 2008, for the assignment of a 70 percent evaluation for the Veteran's service-connected psychiatric disability have not been met. 38 U.S.C. §§ 5101, 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400, 4.130, Diagnostic Code 9400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks an effective date earlier than January 30, 2013, for the assignment of a 70 percent evaluation for her service-connected psychiatric disability. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The law provides an exception to this general rule governing claims "for increase." 38 U.S.C.A. § 5110(a), (b)(2). If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010). See also Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134- 135 (1992); VAOPGCPREC 12-98, 63 Fed. Reg. 56704 (1998). Thus, three possible dates may be assigned depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston, 605 F.3d at 982-8; Harper, 10 Vet. App at 126. In addition, the Court has indicated 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 to the next disability level" provided by law for the particular disability). Therefore, determining the appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred or was "ascertainable." 38 C.F.R. §§ 3.155, 3.400(o)(2); Hazan, 10 Vet. App. at 521. The effective dates for "staged ratings" are established using the principle set forth at 38 C.F.R. § 3.400(o)(2), that is, the earliest date that it is factually ascertainable that the criteria for each disability rating were met. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining when an increase is "factually ascertainable," VA will look to all of the evidence including testimonial evidence and expert medical opinions as to when the increase took place. VAOPGCPREC 12-98. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. A specific claim in the form prescribed by VA 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); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 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 a report of examination or hospitalization by VA or uniformed services will be accepted as an informal claim for increased benefits or an informal claim to reopen. 38 C.F.R. § 3.157. In this case, the Veteran separated from service in April 2007. She filed a claim for anxiety two months later in June 2007. The Agency of Original Jurisdiction (AOJ) issued a rating decision in June 2008 granting service connection for a psychiatric disorder and assigned a noncompensable evaluation effective from April 23, 2007, which was the day following her discharge from service. The Veteran appealed that decision, and in November 2008, the RO increased the evaluation to 30 percent effective from April 23, 2007. The Veteran continued her appeal, and in October 2012, the Board remanded the case for further development. Upon remand, the AOJ increased the Veteran's disability evaluation to 70 percent effective from January 30, 2013, which was the date of a VA examination. The Veteran then filed an appeal for an earlier effective date for the grant of the 70 percent evaluation. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an effective date of May 15, 2008, is warranted for the assignment of a 70 percent evaluation for the Veteran's service-connected psychiatric disability. However, the evidence of record does not warrant an effective date prior to May 15, 2008, for the assignment of that evaluation. 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. Under the criteria for the General Rating Formula for Rating Mental Disorders, a 50 percent disability evaluation is assigned for psychiatric disorders causing 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when the psychiatric disorder results in 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent 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. A review of the relevant evidence of record shows that, at a May 15, 2008 VA examination, the Veteran reported experiencing weekly panic attacks, sleep disturbance, and difficulty concentrating. VA medical records also reflect similar symptoms during that time. During an appointment in May 2008, the Veteran scored a 35 on the Beck scale, indicating severe symptoms. Moreover, at an appointment in July 2008, the Veteran reported that she had been staying in bed for approximately one week and could not go in to work. She stated that her husband had urged her to seek treatment. She also indicated that she did not want to kill herself, but did not care if she died. The Veteran further noted that she wished she was dead and reported struggling with vegetative symptoms and changes in sleep and energy. Later in July 2008, she reported losing her job due to calling out sick. VA medical records dated in January 2010 show that the Veteran continued to experience daily panic symptoms, depressive symptoms, sadness, and fatigue. At an appointment in February 2010, however, the Veteran reported that, with her medication, she was experiencing only occasional panic symptoms and had more energy, no side effects, and occasional sadness, lack of interest, fatigue or poor concentration. At an appointment in May 2010, the Veteran again reported having daily panic attacks and noted that her civilian job was very high volume and stressful, which sometimes triggered her attacks. In addition, the evidence shows that the Veteran was given excused absences from work due to her symptoms in July 2008, May 2010, June 2010, and July 2010. A July 2010 letter from her employer further noted that the Veteran was being removed from her position due to absence without leave. Medical records from June 2010 also show that the Veteran got into an argument with her husband and shot a gun at the floor in response. She was reportedly jailed overnight. At an August 2010 VA examination, the examiner noted that the Veteran was experiencing daily panic attacks, lasting approximately 10 minutes. She had recently taken 90 days of leave as a result of such attacks and the stress associated with her job. The examiner also noted interpersonal problems and reported that the Veteran may not handle stress well and may have difficulty functioning in the work place when stressed. At a November 2011 medical consultation for anxiety, the Veteran reported no suicidal ideation; however, the examiner found the statement less than credible, as the Veteran followed up by stating that, even if she did, she would not tell him because she would not want to be "locked up." At that consultation, the Veteran also reported having panic attacks and marital strain and stated that she had lost several jobs due to interpersonal conflicts. Overall, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence of record shows that, since May 15, 2008, she experienced severe symptoms associated with her service-connected psychiatric disability, to include near-continuous panic or depression which affected her ability to function effectively; impaired impulse control; and difficulty adapting to stressful circumstances. Such symptoms more closely align with a 70 percent evaluation, and she had occupational and social impairment with deficiencies in most areas. Thus, under the laws and regulations as set forth above, the Board concludes that May 15, 2008, is the proper effective date for the assignment of a 70 percent for the disability. However, prior to May 15, 2008, the evidence does not support an assignment of a 70 percent evaluation for the Veteran's service-connected psychiatric disability. During that time period, there is no evidence demonstrating suicidal ideation; obsessional rituals which interfere with daily activities; intermittently illogical speech, near-continuous panic or depression, which affected the ability to function independently, appropriately, or effectively; impaired impulse control; spatial disorientation; neglect of personal appearance or hygiene; difficulty adapting to stressful circumstances; or an inability to establish and maintain effective relationships. It was not factually ascertainable that the Veteran had occupational and social impairment with deficiencies in most areas prior to May 15, 2008. Indeed, a January 2008 noted her report of excessive anxiety, but upon evaluation, she was casually attired and neat in appearance, and her mood and affect were considered stable. She was friendly, pleasant, and cooperative. Her speech was clear and relevant, and the Veteran had good eye contact. She remained calm and cooperative throughout the appointment and answered questions in an appropriate manner. A depression screen and PTSD screen were performed, but they do not reveal findings demonstrating occupational and social impairment in most areas. There are no other records dated during the relevant time period showing that she had such impairment. An April 2010 medical record does show that Veteran reported having a six-year history of anxiety and panic attacks that had been managed with medication until recently. However, no other symptoms or the level of impairment were discussed. Thus, it was not factually ascertainable that the Veteran had occupational and social impairment with deficiencies in most areas prior to May 15, 2008, even though she had the disorder at that time. Rather, the record suggests that there was a more recent increase in the severity of the disability. The Board also acknowledges the contention of the Veteran's representative that she was on medication for anxiety and depression during her military service. See September 2017 brief. However, she is already service-connected for the psychiatric disability, and such evidence does not show that it was factually ascertainable that the disorder resulted in occupational and social impairment in most areas. In fact, a 10 percent evaluation contemplates the required use of continuous medication for a psychiatric disorder; that fact alone does not demonstrate entitlement to a 70 percent evaluation. 38 C.F.R. § 4.130. The Veteran has also submitted lay statements regarding her symptoms, including statements from herself and her husband. The Board notes that they are competent to report her experience and observable symptoms. However, those statements were largely made in the context of the increased evaluation claim and pertain to the more recent symptoms rather than the symptoms and impairment prior to May 15, 2008. Based on the foregoing, the Board finds that the evidence of record prior to May 15, 2008, while indicating a diagnosis and some symptoms, does not demonstrate entitlement to a 70 percent disability evaluation. ORDER An effective date of May 15, 2008, but no earlier, for the assignment of a 70 percent evaluation for the service-connected psychiatric disability, is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs