Citation Nr: 18142341 Decision Date: 10/16/18 Archive Date: 10/15/18 DOCKET NO. 17-17 822 DATE: October 16, 2018 ORDER Entitlement to an effective date of December 21, 2009, but not earlier, for the assignment of a 70 percent rating for psychiatric disability is granted. FINDINGS OF FACT 1. A September 2009 Board decision increased the evaluation assigned the Veteran’s psychiatric disability to 50 percent, effective February 1, 2008. 2. The Veteran thereafter filed a claim seeking entitlement to a TDIU on February 5, 2010. 3. In a November 2011 rating decision, the AOJ increased the Veteran’s disability rating to 100 percent for his service-connected psychiatric disability, effective March 18, 2011; the Veteran appealed the assigned effective date to the Board. 4. An October 2015 Board decision determined that, for the period prior to March 18, 2011, a 70 percent rating, but not higher, was warranted for the Veteran’s psychiatric disability. 5. The November 2015 rating action implementing the October 2015 Board decision assigned a 70 percent disability rating, effective February 5, 2010 6. It is factually ascertainable that an increase in disability occurred on December 21, 2009. CONCLUSION OF LAW The criteria for an effective date of December 21, 2009, but not prior, for the assignment of a 70 percent rating for a service-connected psychiatric disorder have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1983. 1. Entitlement to an effective date earlier than February 5, 2010, for the assignment of a 70 percent rating for psychiatric disability Generally, the effective date of a rating and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 C.F.R. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Thus, an effective date earlier than the date of claim for increase may be assigned if it is factually ascertainable from the evidence of record that an increase in disability had occurred at some point during, but not earlier than, one year prior to the date of receipt of the claim for an increased rating. In determining the proper effective date for an increased rating VA must determine (1) the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record since one year prior to the date of the claim to determine when an increase in disability was “factually ascertainable” in terms of meeting or approximating the criteria for a higher rating. In this case, the Veteran seeks an effective date earlier than February 5, 2010, for the assignment of a 70 percent rating for his service-connected psychiatric disability. Specifically, he alleges that the effective date should be applied retroactively to 2003. By the way of background, the Veteran was originally granted service connection for psychiatric disability in a May 2003 rating decision. At that time, a 10 percent rating was assigned effective November 13, 2002. A September 2009 Board decision increased the rating to 30 percent effective April 27, 2005, and to 50 percent effective February 1, 2008. On February 5, 2010, the Veteran submitted VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), based on which, in a November 2011 rating decision, the AOJ increased the Veteran’s disability rating to 100 percent for his service-connected depressive and bipolar disorders, effective March 18, 2011. The Veteran perfected an appeal as to the effective date assigned for the increased rating in December 2014. In an October 2015 decision, the Board determined that an increased rating of 70 percent, but not higher, was warranted for the Veteran’s service-connected psychiatric disability prior to March 18, 2011. The Board decision essentially denied entitlement to a 100 percent rating prior to March 2011. The Board decision was equivocal concerning the effective date for the 70 percent rating however, and when the RO implemented the decision, the RO assigned an effective date of February 5, 2010, for the award of the rating (consonant with the date of the TDIU application). The September 2009 Board decision is a final action. The next claim, after that Board decision was in the form of the TDIU application, which can be accepted as a claim for an increased rating. Consequently, the only legally available date of claim in this case is February 5, 2010. Pursuant to 38 C.F.R. § 3.400(o)(2), however, a Veteran is entitled to an effective date up to one year prior to the date of claim, if it is factually ascertainable that an increase in severity occurred. This means that the earliest potential effective date for the 70 percent rating is February 5, 2009. Absent a finding of clear and unmistakable error (CUE), which is not alleged here, the earlier claims may not serve as a basis for an earlier effective date. The Veteran’s service-connected psychiatric disorders are evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under that General Rating Formula, a 70 percent rating is warranted for 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 worklike setting); and inability to establish and maintain effective relationships. A 50 percent rating is warranted for 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. VA treatment records dated in December 2009, reflect the Veteran was hospitalized for a week due to his service-connected depressive and bipolar disorders. This hospitalization was described as an exacerbation of symptoms caused by multiple acute stressors including legal problems. At the time of his admission on December 21, 2009, the Veteran was ambulatory, appropriately dressed and groomed, and had spontaneous vocal speech. He was depressed, anxious, and restless, his mood and affect were not appropriate, and his insight and judgment were poor. He did not have racing or delusional thoughts, loose associations, flight of ideas, phobias, panic attacks, obsessions, compulsions, or disorders of perception. Further, the Veteran denied homicidal ideations but was found to be a high suicide risk due to current suicidal thoughts and plans Based on the above, the Board finds that the Veteran’s psychiatric symptoms most nearly approximate the criteria for a 70 percent rating since December 21, 2009. See 38C.F.R. §4.130, DC 9434. Further, the Veteran’s subsequent recurrent hospitalizations for exacerbations of symptoms in July 2010 and November 2010, as well as his suicidal ideations suggest an overall disability picture that is more analogous to a finding of social and occupational impairment with deficiencies in most areas. The Board finds that it is factually ascertainable from the record that the Veteran’s depressive and bipolar disorders have met the criteria for a 70 percent rating since December 21, 2009. As such, an effective date of December 21, 2009, but not prior, is warranted for the assignment of a 70 percent rating for his service-connected psychiatric disability. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Martinez, Associate Counsel