Citation Nr: 1829910 Decision Date: 10/19/18 Archive Date: 10/30/18 DOCKET NO. 17-33 008 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to October 26, 2012, for the award of a 70 percent rating for social anxiety disorder with recurrent major depressive disorder. (The issue of entitlement to service connection for posttraumatic stress disorder is addressed in a separate Board decision.) REPRESENTATION Veteran represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Alexander Panio, Counsel INTRODUCTION The Veteran served on active duty from December 1981 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. There are multiple appeals currently before the Board that arose at different times. As such, the appeals have different docket dates. For efficiency, the Board will adjudicate all appeals over which it has jurisdiction. See Ramsey v. Nicholson, 20 Vet. App. 16, 34 (2006) (holding that 38 U.S.C. § 7107 is not an exclusive set of rules by which the Board must consider and decide cases, but rather was intended "to set broad guidelines for the general order of processing appeals at the Board to ensure fairness, efficiency, and timeliness in consideration and decision of appeals"). FINDINGS OF FACT 1. A final December 2012 Board decision denied a rating in excess of 50 percent for the Veteran's service-connected psychiatric disability, currently characterized as social anxiety disorder with recurrent major depressive disorder. 2. An informal claim for an increased rating for the Veteran's service-connected psychiatric disability, currently characterized as social anxiety disorder with recurrent major depressive disorder, was received on October 26, 2012. 3. It is not factually ascertainable that the Veteran's service-connected psychiatric disability, currently characterized as social anxiety disorder with recurrent major depressive disorder, increased in severity so as to warrant a 70 percent rating within the year prior to the receipt of the October 26, 2012, claim. CONCLUSIONS OF LAW 1. The December 2012 Board decision denied a rating in excess of 50 percent for the Veteran's service-connected psychiatric disability, currently characterized as social anxiety disorder with recurrent major depressive disorder, is final. 38 U.S.C. § 7104(b) (2002) [(2012)]; 38 C.F.R. § 20.1100 (2012) [(2017)]. 2. The criteria for an effective date prior to October 26, 2012, for the award of a 70 percent rating for social anxiety disorder with recurrent major depressive disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is currently in receipt of a 70 percent rating for his service-connected psychiatric disability, currently characterized as social anxiety disorder with recurrent major depressive disorder, effective October 26, 2012. He contends that an earlier effective date for the grant of the 70 percent rating is warranted. The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Such also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits. See Servello at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2). A "report of examination or hospitalization" under § 3.157(b) should "indicate that [a] veteran's service-connected disability [has] worsened since the time it was last evaluated." Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term "report of examination" under § 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination." A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written." Massie, 25 Vet. App. at 133. Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the veteran's general condition, as [the physician] had observed it over" time. Id. In a December 7, 2012, decision, the Board considered whether a rating in excess of 50 percent was warranted for the Veteran's service-connected psychiatric disability, currently characterized as social anxiety disorder with recurrent major depressive disorder, for the entire period stemming from his November 17, 2008, claim for an increased rating. At such time, the Board considered the entirety of the evidence of record before it, to include the Veteran's lay statements, VA treatment records dated through December 2011, information from his pervious employers, records from the Social Security Administration, and VA examinations conducted in April 2009, May 2010, and November 2011, and found that a rating in excess of 50 percent was not warranted at any point during the appeal period. A decision of the Board is final on the date stamped on the face of the decision, which is the date the decision is mailed. 38 C.F.R. §20.1100(a). The Veteran was informed of the December 2012 Board decision and his rights to appeal the denial to the United States Court of Appeals for Veterans Claims (Court), to file with the Board a motion for reconsideration of the decision, to file with the Board a motion to vacate the decision, or to file with the Board a motion for revision of the decision based on clear and unmistakable error. See 38 U.S.C. § 7104; 38 C.F.R. §§ 20.904, 20.1000, 20.1400. These options were again explained to the Veteran and his representative at his May 2017 Board hearing and, based on the request of his representative, a copy of the hearing transcript was provided to them so that they may further consider their options. However, to date, the Veteran has not exercised any of these options with regard to December 2012 Board decision. Therefore, it is final and the Board may not now revisit the findings made therein. 38 U.S.C. § 7104(b) (2002) [(2012)]; 38 C.F.R. § 20.1100 (2012) [(2017)]. While the Veteran's file was at the Board, additional VA treatment records dated from January 2012 to October 2012, an October 2012 statement from Dr. Y., and a November 2012 Disability Benefits Questionnaire (DBQ) were received. Furthermore, on October 26, 2012, the Agency of Original Jurisdiction received the Veteran's informal claim for an increased rating for his service-connected psychiatric disability. In this regard, Dr. Y.'s statement was received the same day and a review of the VA treatment records dated from January 2012 to October 2012 do not include an outpatient or hospital examination or admission to a VA hospital. Rather, such only note the Veteran's current diagnoses and prescribed medication, and do not include mental status evaluations. Therefore, such treatment records may not be considered an informal claim pursuant to 38 C.F.R. § 3.157. Furthermore, the Board finds that it is not factually ascertainable that the Veteran's service-connected psychiatric disability, currently characterized as social anxiety disorder with recurrent major depressive disorder, increased in severity so as to warrant a 70 percent rating within the year prior to the receipt of the October 26, 2012, claim. Specifically, in order to warrant a 70 percent rating, the psychiatric disability must result 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. 38 C.F.R. § 4.130, Diagnostic Code 8400-9434. As noted previously, the VA treatment records dated in 2012 fail to show manifestations of the Veteran's psychiatric disability that more nearly approximate occupational and social impairment with deficiencies in most areas. Furthermore, the evidence of record does not show that such criteria was met until October 2012, as demonstrated by Dr. Y.'s statement and confirmed in the November 2012 DBQ. Specifically, Dr. Y. indicated that, as a result of the Veteran's psychiatric disability, as well as nonservice-connected physical disorders, he was unable to work. As specific to his psychiatric disability, Dr. Y. noted that such prevented the Veteran from gainful activities. Furthermore, the November 2012 DBQ, completed by the Veteran's treatment provider, indicates that his psychiatric disability resulted in total occupational and social impairment, which is indicative of a 100 percent rating under the applicable rating criteria. However, such evidence does not show that the Veteran's psychiatric disability had increased in severity so as to meet the criteria for a 70 percent rating within the year prior to October 26, 2012. Moreover, subsequent VA and Vet Center records, as well as February 2013, September 2013, and November 2016 VA examinations likewise fail to show that such an increase occurred during the relevant time period. In fact, the February 2013 and September 2013 VA examiners specifically determined that the Veteran's psychiatric disability resulted in, at most, occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. Further, while the November 2016 VA examiner found that such disability resulted in occupational and social impairment with deficiencies in most areas, such does not reflect that the increase in disability occurred within the year prior to the October 26, 2012, claim. The Board has further considered the Veteran's lay statements that his service-connected psychiatric disability has resulted in occupational and social impairment with deficiencies in most areas since the date of service connection in August 2006. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran's disability, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. Therefore, based on the foregoing, the Board finds that the criteria for an effective date prior to October 26, 2012, for the award of a 70 percent rating for social anxiety disorder with recurrent major depressive disorder have not been met. Consequently, there is no doubt to be resolved and the Veteran's appeal must be denied. ORDER An effective date prior to October 26, 2012, for the award of a 70 percent rating for social anxiety disorder with recurrent major depressive disorder is denied. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs