Citation Nr: 18147571 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-43 103 DATE: November 5, 2018 ORDER Entitlement to an effective date OF July 8, 2014 for the assignment of a 70 percent disability evaluation for major depressive disorder is granted. FINDING OF FACT The evidence demonstrates that the Veteran’s psychiatric symptomatology has been relatively unchanged throughout the appeal period, and resolving all reasonable doubt in his favor, that symptomatology most closely approximates occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an effective date of July 8, 2014, for assignment of a 70 percent disability evaluation for major depressive disorder have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1991 to December 1996. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Neither the Veteran nor his 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). 1. Entitlement to an effective date earlier than December 6, 2014 for assignment of a 70 percent disability evaluation for major depressive disorder 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 increased, 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 the application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). A claim is defined as 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) (2017). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Id. at 57,686. The law provides that 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). Where compensation or pension is increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier. 38 U.S.C. § 5110(g). The Court has held that 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). 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); (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); 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 also Harper v. Brown, supra. The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The record shows the Veteran’s claim for service connection for major depression was received July 8, 2014. A November 2014 rating decision granted service connection and assigned a 30 percent disability evaluation from the date of claim. The Veteran appealed the initial rating, and an April 2015 rating decision assigned a 70 percent evaluation effective December 6, 2014, preserving the lower rating for the initial portion of the appeal period. The current appeal challenges the 30 percent evaluation assigned between July 8, 2014 and December 6, 2014; the Veteran has contended that the 70 percent evaluation should have been initially assigned. The Veteran’s depressive disorder has been evaluated under 38 C.F.R. § 4.130, DC 9434. However, the actual criteria for rating the disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. A 30 percent rating contemplates 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. A 70 percent rating is assigned 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the Veteran’s own occupation or name. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See, e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner’s assessment of the severity of a condition, is not dispositive of the evaluation issue; rather the GAF score must be considered in light of the actual symptoms of the Veteran’s disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board also notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the frequency and severity of his current symptomatology that is observable to the senses. See Layno v Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). Turning to the evidence in this case, a review of the medical file in this case does not suggest any significant pattern of worsening symptoms during the approximately five month period at issue. The Veteran met with a VA examiner in October 2014. That examiner noted symptoms including depression, anxiety, social isolation and withdrawal, and strained relationships, characterizing his mood as “somber” and “bad”. The Veteran’s memory and cognitive function remained intact, and he was free from visual or auditory hallucinations and delusions. Overall, the examiner found the Veteran beset by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A second VA examination was conducted fewer than four months later, in January 2015. The VA examiner at this later examination noted additional symptoms not noted after the first examination, including flattened affect, sleep problems, loss of motivation, and deficits in adaptive functioning. The previously noted symptoms remained present as well. Critically, there is no evidence either in the VA examiner’s notes, nor in treatment records, of a significant worsening of symptoms in the three-and-a-half month period between VA examinations. Further, despite noting the presence of previously unaccounted for symptoms, the January 2015 VA examiner found the Veteran beset only by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Nevertheless, given the panoply of symptoms revealed by the two VA examinations of record, the RO assigned a 70 percent evaluation effective December 6, 2014, and ostensibly based on the results of the latter VA examination. In reviewing this evidence, the Board finds that the higher rating should be applied to the earlier portion of the appeal period as well. As noted above, there is no significant evidence of record that the Veteran’s symptoms worsened materially over the course of the earlier portion of the appeal period, and, given the proximity in time between the two VA examinations, the Board finds that, resolving all reasonable doubt and ambiguity in the Veteran’s favor, the latter examination’s findings, which suggest the broader range of symptoms and limitations, can be applied with equal validity to the earlier portion of the appeal period as can the findings of the first VA examination. In other words, the relative timing of the two examinations has herein operated against the Veteran, the record suggesting the findings of the second examination could as easily have been made at the first. (Continued on the next page)   As such, and resolving all reasonable doubt and ambiguity in the Veteran’s favor, the Board finds entitlement to a 70 percent disability evaluation for major depression is warranted from the date of claim. Certainly, there is no basis for a higher rating for any portion of the appeal period. There has been no showing of total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran is not beset by gross impairment in thought processes, nor by delusions or hallucinations. There is no indication he has engaged in grossly inappropriate behavior, there is no objective evidence of memory loss or cognitive defects. Accordingly, the Board does not find that the criteria for a 100 percent rating are satisfied in this case. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel