Citation Nr: 1802987 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 13-10 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date earlier than February 17, 2012, for a 70 percent evaluation for depressive disorder. 2. Entitlement to an effective date earlier than February 17, 2012, for the grant of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Barbara B. Harris, Private Attorney ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from November 1959 to October 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina which granted service connection for depressive disorder, assigning a 30 percent disability rating effective March 10, 2011, and denied a TDIU. In November 2011 correspondence, the Veteran submitted a timely notice of disagreement as to the denial of a TDIU and, in February 2012, the Veteran submitted a timely notice of disagreement as to the rating assigned for his depressive disorder. Subsequently, by rating decision dated in March 2012, the RO increased the Veteran's disability rating for depressive disorder from 30 percent disabling to 70 percent disabling effective February 17, 2012 (the date of a privately obtained psychiatric evaluation report) and also granted a TDIU effective February 17, 2012. In April 2012 correspondence, the Veteran submitted a timely notice of disagreement as to the February 17, 2012 effective date assigned for the award of a 70 percent disability rating for depressive disorder and a TDIU. Also in April 2012 correspondence, the Veteran's attorney argued that the correct effective date for the award of a 70 percent disability rating for depressive disorder and a TDIU was March 10, 2011, the date of the initial claim for service connection for depressive disorder. In April 2013 correspondence, the Veteran's attorney withdrew the issue concerning a higher rating for the Veteran's depression. As such, this issue is no longer on appeal. This case was previously before the Board in March 2017 at which time it was remanded for additional development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2014). FINDINGS OF FACT 1. The current formal claim for service connection for depressive disorder was received on March 10, 2011. 2. Since March 10, 2011, the Veteran's depressive disorder has met the requirement for a 70 percent disability rating. 3. Since March 10, 2011, the Veteran has met the criteria for a TDIU. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date of March 10, 2011, and no earlier, for a 70 percent rating for service-connected PTSD have been met. 38 U.S.C. § 5110(b) (2012); 38 C.F.R. §§ 3.157(b)(1), 3.400(o)(2), 4.7, 4.130, Diagnostic Code 9434 (2017). 2. The criteria for assignment of an effective date of March 10, 2011, and no earlier, for a grant of TDIU have been met. 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance With respect to the Veteran's claim 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). II. Legal Criteria The effective date of an award based on a claim for increase of compensation "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). VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Under this rule, an effective date for an increased rating may be assigned later than the date of receipt of the claim -- if the evidence shows that the increase in disability actually occurred after the claim was filed -- but never earlier than the date of receipt of the claim. The law provides one exception to this general rule: 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 regulations provide that the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if claim is received within one year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of doubt is afforded the claimant. 38 U.S.C. § 5107(b). A claim 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). A report of examination or hospitalization which meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Once a formal claim for compensation has been allowed, receipt of a report of examination or hospitalization by uniformed services will be accepted as an informal claim for increased benefits. 38 C.F.R. § 3.157(a), (b). When the following reports relate to examination or treatment of a disability for which service connection has previously been established, the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of claim and the date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b)(1). II. Analysis By way of history, the Veteran submitted an initial claim for service connection for depressive disorder on March 10, 2011. By rating decision dated in October 2011, the RO granted service connection for depressive disorder and assigned a 30 percent disability rating effective March 10, 2011, the date of the Veteran's claim. The Veteran disagreed with the rating assigned and perfected an appeal. During the course of this appeal, the Veteran submitted a February 17, 2012 private psychiatric evaluation report. Based on the findings of this report, in a March 2012 rating decision, the RO increased the Veteran's disability rating for depressive disorder from 30 percent disabling to 70 percent disabling effective March 10, 2011. The RO also granted a TDIU effective February 17, 2012. A. Entitlement to an effective date earlier than February 17, 2012, for a 70 percent evaluation for depressive disorder In the present case, the claim on appeal was received on March 10, 2011. As this appeal stems from an initial grant of service connection for depressive disorder, that date serves as the date of claim. As such it is necessary to determine whether, sometime between March 10, 2011, and February 17, 2012, an increase in the Veteran's depressive disorder became factually ascertainable. To do so, the rating criteria for this disability must be examined. The Veteran's depressive disorder is rated under the General Rating Formula for Mental Disorders. Under this formula, a 30 percent disability rating is in order when there is 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 assigned 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 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. Id. A 70 percent evaluation is warranted where there is 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; intermittently illogical obscure, or irrelevant speech; 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. Id. A review of the pertinent medical evidence dated between March 10, 2011 and February 17, 2012 includes a May 2011 VA contract examination. At that time, it was noted that the Veteran worked as a residential painter until 1985 but had not worked since that time due to a combination of his service-connected tinnitus and depression. He was previously married for eight years but the marriage ended in divorce. He had a good relationship with his adult son and also had a younger brother that was living but no other family or friends. The examiner diagnosed depressive disorder, secondary to the Veteran's service-connected tinnitus. The examiner found that the Veteran had moderate to severe social and occupational dysfunction secondary to his depressive disorder with prominent feelings of hopelessness and helplessness, increased isolation and withdrawal, loss of motivation and interest in outside activities and being around people, increased irritability and difficulty tolerating interactions with people, as well as intermittent suicidal thoughts. Also of record are several statements from the Veteran's treating physicians. In a January 2011 statement from Dr. S, it was noted that the Veteran's tinnitus and resulting depression make him "unable to cope with his normal daily activities." In a February 2011 statement from Dr. P., it was noted that it was at least as likely as not that the Veteran's tinnitus and resulting depression preclude employment. Given the above The Board finds that March 10, 2011 is the proper effective date for the assignment of a 70 percent disability rating for service-connected depressive disorder. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). As for the potential of an effective date earlier than March 10, 2011, although the Veteran has, no doubt, experienced depression warranting a 70 percent disabling rating prior to March 10, 2011, he did not submit a claim for service connection for a psychiatric disability until March 10, 2011. As noted above, VA regulations provide that the effective date for increases shall be the "date of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(o)(1). Furthermore, the Veteran's attorney has not requested an effective date earlier than March 10, 2011. B. Entitlement to an effective date earlier than February 17, 2012, for the award of a TDIU TDIU ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). Given the award of a 70 percent disability rating for depressive disorder effective March 10, 2011, as well as the fact that the Veteran has not worked since at least March 10, 2011 due to a combination of his service-connected tinnitus and depressive disorder, the Board finds that March 10, 2011 is also the proper effective date for the assignment of a TDIU. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Although the record shows that the Veteran has not worked since 1985, he did not meet the schedular criteria for a TDIU until March 10, 2011. Furthermore, the Veteran's attorney has not requested an effective date earlier than March 10, 2011. ORDER An effective date of March 10, 2011, and no earlier, for the assignment of an initial 70 percent disability rating for service-connected depressive disorder is granted, subject to the laws and regulations governing the payment of monetary awards. An effective date of March 10, 2011, and no earlier, for the grant of a TDIU is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs