Citation Nr: 18141848 Decision Date: 10/12/18 Archive Date: 10/11/18 DOCKET NO. 16-11 868 DATE: October 12, 2018 ORDER Entitlement to service connection for hypertension is denied. Entitlement to a rating of 70 percent, but no higher, for major depressive disorder is granted. Entitlement to an effective date prior to January 7, 2014 for major depressive disorder is denied. REMANDED Entitlement to service connection for headaches is remanded. FINDINGS OF FACT 1. The preponderance of the medical evidence shows that the Veteran’s hypertension was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 2. The Veteran’s major depressive disorder is characterized by suicidal ideation, occasional neglect of personal appearance and grooming, and near-continuous panic or depression, along with anxiety, suspiciousness, flattened affect, chronic sleep impairment, memory impairment, disturbances of motivation and mood and problems with establishing effective relationships. 3. No formal or informal claims for service connection for a psychiatric disability were received by VA prior to January 7, 2014. 4. The Veteran submitted a statement requesting service connection for “mental health” that was received by the RO on January 7, 2014. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. The criteria for a disability rating of 70 percent, but no higher, for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434 (2017). 3. The criteria for entitlement to an effective date prior to January 7, 2014 for major depressive disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to October 1974 and from December 1974 to December 1977. This matter came before the Board of Veterans Appeals (Board) on appeal from October 2014 and November 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The November 2016 rating decision granted service connection for major depressive disorder, which had been denied in the October 2014 decision. The Veteran filed a notice of disagreement with the rating and effective date assigned therein, and perfected his appeal regarding those issues in October 2017. 1. Entitlement to service connection for hypertension The Veteran seeks service connection for hypertension. The question for the Board is whether the Veteran has a current disability that began during service, manifested to a compensable degree within one year of separation from service, or is at least as likely as not related to an in-service injury or disease. After a review of the evidence of record, the Board concludes that, while the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it began during active service, or within a year of separation from service, or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303, 3.307, 3.309. In general, to establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton, 557 F.3d at1366. Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including hypertension, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Hypertension is manifest to a compensable degree when there is diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, or when there is a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s service treatment records from his qualifying period of service are silent for diagnosis or treatment for hypertension. His service treatment records do not contain a pattern of elevated blood pressure. August 1973 records contain a reading of 124/72. His October 1974 separation examination had a blood pressure reading of 120/80. His December 1974 enlistment medical history report indicated no history of high blood pressure and the December 1974 enlistment examination report had a blood pressure of 122/80. Finally, the October 1977 separation examination had a blood pressure reading of 114/70. The Veteran’s active service ended in December 1977. To manifest to a compensable degree within one year, the evidence would need to show diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or continuous medication. A review of the evidence shows the record is silent for evidence of either elevated blood pressure readings or a prescription for blood pressure medication during the presumptive period. The first medical evidence of record of hypertension is an April 2005 private treatment record noting moderate hypertension on occasion, nearly 30 years after service. The Board also notes that the April 2005 private treatment record does not indicate that the Veteran was prescribed continuous medication for blood pressure control or that he had either diastolic pressure over 100 or systolic pressure over 160, as the only blood pressure reading recorded was 120/84. March 2007 private treatment records indicate that the Veteran had been diagnosed with hypertension and prescribed Lisinopril, but again, this was 30 years after separation from service and not within the presumptive period. While the Veteran believes he is entitled to service connection for hypertension, he does not possess the medical expertise required to provide an opinion as to the etiology of the currently diagnosed hypertension. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The competent evidence of record simply is against a finding that hypertension had its onset during the Veteran’s period of qualifying service or that it manifested to a compensable degree within a year after the end of his qualifying period of service. Service connection is therefore not warranted. 38 C.F.R. § 3.303(a), (d), 3.307, 3.309. 2. Entitlement to a rating in excess of 50 percent for major depressive disorder The Veteran contends that he is entitled to an increased rating for major depressive disorder. Upon review of the evidence, the Board finds that the Veteran’s depression has been characterized by symptoms such as suicidal ideation, occasional neglect of personal hygiene and near-continuous panic or depression, causing occupational and social impairment with deficiencies in most areas. Given this symptomatology, the Board finds that the disability more nearly approximates a rating of 70 percent, but no higher, for the entire appeal period. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability’s severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Ratings are assigned according to the manifestation of symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency and duration, have caused the level of occupational and social impairment associated with a particular rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran has been rated under Diagnostic Code (DC) 9434 for major depressive disorder, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 50 percent rating are 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; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are 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. The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self of 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. 38 C.F.R. § 4.130, DC 9434. VA treatment records document treatment for depression. A September 2016 psychiatric evaluation noted insomnia, low energy and concentration, depression and anxiety. The Veteran did not report suicidal or homicidal ideation. November 2016 VA treatment records noted two prior suicide attempts but the Veteran did not report suicidal or homicidal ideation. The VA provider noted depression, anxiety, low energy and concentration, paranoia, memory impairment and that the Veteran slept 4 hours per night. The provider did not find clear delusions or suicidal ideation and noted that the Veteran’s mood was depressed, his affect was appropriate and his speech was normal. May 2017 VA treatment records noted continuing depression and sleep trouble, and his medication was increased. A September 2014 VA examination noted symptoms of depressed mood, chronic sleep impairment, difficulty establishing effective work and social relationships, and suicidal ideation. The examiner noted that the Veteran had thoughts of injuring himself but was not an imminent threat to himself at the time. However, the examiner opined that the Veteran “requires ongoing assessment for lethality.” A February 2016 private examination found that the Veteran had major depressive disorder and noted that the Veteran was socially isolated and withdrawn, though he lived with his partner and children. The private examiner noted that the Veteran’s partner reminded him to shower, shave and get a haircut and that on occasion the Veteran did not shower for weeks at a time. The provider found symptoms of depression, anxiety, suspiciousness, panic attacks more than once per week, near-continuous panic and depression, flattened affect, chronic sleep impairment, disturbances of motivation and mood and problems with establishing effective relationships. The Veteran had variable concentration and struggled to remember basic information. The provider also found that the Veteran had suicidal ideation and seemed paranoid but did not report any hallucinations. A September 2016 VA examination found that the Veteran had moderate major depressive disorder with symptoms of depression, suspiciousness, chronic sleep impairment, memory impairment, flattened affect, and disturbances of motivation and mood. He was noted to be neat and clean. He could not recall his work history since 2001. At the outset, the Board finds that the VA and private examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds they are entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). Upon review of the above, the Board finds that the evidence shows that the Veteran’s overall disability picture disability picture more nearly approximates the severity required for a 70 percent rating. The examinations of record have consistently found that the Veteran has symptoms of flattened affect, chronic sleep impairment, memory impairment, disturbances of motivation and mood and difficulty establishing effective work and social relationships. While these symptoms are encompassed by a 50 percent rating, the evidence also indicates that the Veteran has suicidal ideation and a history of multiple suicide attempts, and the September 2014 VA examiner noted that ongoing assessment for lethality would be required. As noted above, suicidal ideation alone may cause occupational and social impairment in most areas, consistent with a 70 percent rating. In addition, the February 2016 private examiner noted that the Veteran has periods of neglect of personal appearance and hygiene, requiring reminders to perform basic grooming and sometimes not showering for weeks at a time. The February 2016 examiner also found that the Veteran has symptoms of near-continuous panic or depression. The evidence does not indicate that the Veteran exhibits obsessional rituals, illogical speech, impaired impulse control or spatial disorientation, but the Board notes that the symptoms list in the general rating formula are non-exhaustive and finds that the overall severity of the Veteran’s symptoms, particularly his suicidal ideation and neglect of personal hygiene, warrants a 70 percent rating for the entire period on appeal. 38 C.F.R. § 4.7. However, the preponderance of the evidence does not support an evaluation in excess of 70 percent for the period on appeal. The competent evidence of record does not support the conclusion that the Veteran’s overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. That is, the competent evidence of record does not show that the Veteran experiences: gross impairment in thought processes or communication, grossly 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 or memory loss for names of close relatives, own occupation or own name. While the Veteran has a history of suicide attempts, the evidence indicates that they occurred in the 1980s and during the period on appeal the evidence consistently indicates that the Veteran had suicidal ideation but no plan or intent. There is also no evidence of homicidal ideation. The Board therefore finds that the evidence does not support the conclusion that the Veteran has persistent danger of hurting himself or others. The Board also notes that the record indicates that the Veteran maintains a relationship with his partner and two children. The Board therefore finds that the evidence of record does not support the conclusion that the Veteran’s psychiatric disability causes total social and occupational impairment. The Board has considered the requirement to resolve any reasonable doubt regarding the level of the Veteran’s disability in his favor. The Board finds that the Veteran’s overall picture more nearly approximates that of a 70 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. A rating above 70 percent is therefore not warranted. 3. Entitlement to an effective date prior to January 7, 2014 for major depressive disorder The Veteran contends that he is entitled to an earlier effective date for his major depressive disorder. The question for the Board is whether the Veteran submitted a claim for service connection prior to January 7, 2014. The Board concludes that an earlier effective date is not warranted as the Veteran’s claim for service connection was received by the RO on January 7, 2014, and there were no prior communications from which can be considered a formal or informal claim for service connection for major depressive disorder. For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that “[a]ny communication or action, indicating an intention to apply for one or more benefits... [s]uch informal claim must identify the benefit sought.” 38 C.F.R. § 3.155 (a) (2012). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim, however, an informal claim must identify the benefit sought, be in writing, and request a determination of entitlement or evidence a belief in entitlement to a benefit. VA was required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). However, VA was not required to anticipate any potential claim for a benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). The Veteran submitted a statement on January 7, 2014 requesting service connection for “mental health.” The Board has reviewed the record prior to that submission for a formal claim or informal claim, however, none was identified. There simply is no communication prior to January 7, 2014 which shows an intent to file a claim for a psychiatric disability. Thus, this is the earliest possible effective date for which the Veteran can receive the grant of service connection for a psychiatric disability. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. A September 2016 VA examination found that the Veteran’s migraine headaches are not likely incurred in or caused by service. The examiner noted November 1971 service treatment records diagnosing a tension headache but stated there was no ongoing medication, the separation examination was normal and there were no medical records to show chronicity of headaches after service. The Board notes, however, that in addition to the November 1971 service treatment record cited by the examiner, the Veteran’s service treatment records contain several other complaints of headaches. Indeed, August 1972, February 1975, and March 1976 service treatment records all note headaches and March 1977 service treatment records note headaches all the previous week. It is not clear if the examiner considered these additional complaints of headaches in service and therefore, it appears that the examiner may have relied on an inaccurate factual premise. Therefore, a new examination that considers the Veteran’s complete medical history is required. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current headache disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current headache disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. Attention is requested to service treatment records noting complaints of headaches in November 1971, August 1972, February 1975, March 1976 and March 1977. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. CONTINUED ON NEXT PAGE   2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel