Citation Nr: 18152776 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 14-43 239 DATE: November 27, 2018 ORDER Entitlement to a 70 percent rating for major depressive disorder is granted. Entitlement to an effective date prior to July 24, 2007, for the grant of a 20 percent rating for the right knee meniscus tear, status post-surgery, is denied. REMANDED Entitlement to a rating in excess of 70 percent for a major depressive disorder is remanded. FINDINGS OF FACT 1. The Veteran’s major depressive disorder symptoms are more nearly manifested by occupational and social impairment with deficiencies in most areas. 2. The Veteran did not submit a claim, either formal or informal, for an increased rating for right knee meniscus tear, status post-surgery, earlier than July 24, 2007, and there is not a factually ascertainable worsening of his symptoms in the one-year period prior to July 24, 2007. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for a major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.7, 4.130, Diagnostic Code 9434. 2. The criteria for an effective date prior to July 24, 2007, for the grant of a 20 percent rating for the right knee meniscus tear, status post-surgery, have not been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1980 to July 1983, as well as additional unverified service in the United States Army National Guard. In a May 2016 decision issued by a different Veterans’ Law Judge the Board of Veterans’ Appeal (Board), among other things, denied the Veteran’s claim for a rating in excess of 30 percent for his major depressive disorder and for an earlier effective date for the grant of a 20 percent rating for right knee meniscus tear, status post-surgery. The Veteran appeal the May 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a subsequent October 2017 memorandum decision, the Court vacated and remanded the May 2016 Board decision to the extent that it denied the Veteran’s claims for a rating in excess of 30 percent for his major depressive disorder and denied an earlier effective date for the grant of a 20 percent rating for right knee meniscus tear, status post-surgery. The Rating Claim. The Veteran claims, in substance, that his problems with memory loss, poor impulse control, severe depression, and suicide attempts meet the criteria for a higher rating at all times during the appeal. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran’s major depressive disorder is rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the General Rating Formula for Mental Disorders (General Formula), he is entitled to a higher, 50 percent rating, when the evidence shows 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 warranted when the evidence shows 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); and inability to establish and maintain effective relationships. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that 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). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Initially, the Board notes that this claim for increased rating for a major depressive disorder was pending before the agency of original jurisdiction on or after August 4, 2014. Therefore, the Board finds that the AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 5th Edition (2013) (DSM-5) applies to the current appeal. See 53 Fed. Reg. 14308 (March 19, 2015); 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130 (2017). Accordingly, the Board’s adjudication of this claim cannot include any discussion of the Global Assessment of Functioning (GAF) scores found in the record. See Golden v. Shulkin, No. 16-1208, Slip opinion at 5 (Vet. App. Feb. 23, 2018). With the above criteria in mind, and as noted in the Court’s October 2017 decision, the record on appeal documents the Veteran’s major depressive disorder causing him to have problems with, among other things, attempting suicide on one occasion (see January 2009 VA examination (the Veteran reported he tried to hang himself)) as well as suicidal ideation (see January 2009 VA treatment record (the Veteran has death wishes)), poor impulse control (see January 2009 VA examination), a problem with his recent memory (see September 2011 VA examination; March 2012 VA treatment record), and feeling his life is worthless (see November 2008 Dr. Ortiz letter; January 2009 VA examination; January 2009 VA treatment record). The record also shows the Veteran’s major depressive disorder caused problems with a tangential thought process (see January 2009 VA examination), episodes of violence (see January 2009 VA examination), an overabundant thought process (see September 2011 VA examination), delusions of persecutions (see March 2012 VA treatment records), and very circumstantial thought process (see June 2012 VA treatment record). Tellingly, the Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). The Court has also held that, “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528); see also Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). (holding that a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms). Therefore, when considering the frequency, severity, and duration of the Veteran’s impairment to assess his disability picture and when resolving all reasonable doubt in his favor, the Board finds that the evidence shows that the appellant’s major depressive disorder has approximated the criteria for at least a 70 percent rating for the entire appeal period. See 38 C.F.R. § 4.130; Hart, supra; Fenderson, supra. Entitlement to an effective date prior to July 24, 2007, for the grant of a 20 percent rating for the right knee meniscus tear, status post-surgery The Veteran asserts, in substance, that the 20 percent rating for his right knee meniscus tear, status post-surgery, should be effective at least as early as the dates that May 2007 treatment records documented his complaints and treatment for right knee crepitus Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). While the laws and regulations governing what is a “claim” or “application” for VA benefits have since been changed, during the time period covered by this appeal, the term “claim” or “application” meant 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). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. In this regard, it is well settled that intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1353 (Fed. Cir. 1999) (noting that even an informal claim for benefits must be in writing). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. If a veteran submits a claim for an increased rating with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If the Veteran does not perfect an appeal, however, the disallowance becomes final. See 38 U.S.C. § 7105. Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C. § 7104. The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.105. The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), also recently held that for purposes of finality VA treatment records dated during the appeal period are consider in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger VA’s duty under 38 C.F.R. § 3.156(b) if they are new and material evidence. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). In VAOPGCPREC 12-98 (Sept. 23, 1998), General Counsel noted that 38 C.F.R. § 3.400(o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred. That section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. With the above criteria in mind, the record shows that the regional office (RO) in an October 1997 rating decision granted service connection for right knee meniscus tear, status post-surgery, and assigned a noncompensable rating effective April 27, 1995. In a December 2002 rating decision, the Veteran’s subsequent July 2002 claim for a compensable rating for the right knee meniscus tear, status post-surgery, was denied. In January 2003 the RO received the Veteran’s notice of disagreement as to the December 2002 rating decision. However, the Board finds that the Veteran did not perfect his appeal to the December 2002 rating decision because he did not thereafter file with the RO a substantive appeal. See 38 C.F.R. §§ 20.200, 20.302(c) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case). The Board also finds that new and material evidence was not received by the RO in the first year following the issuance of the December 2002 rating decision. See 38 C.F.R. § 3.156(b). A review of the record on appeal does show that the RO associated with the record VA treatment records after the time to appeal the December 2002 rating decision had run but which were created during the one-year appeal period and/or had had knowledge of such records if it did. See Turner, supra. Lastly, the Board finds that it cannot adjudicate whether there was CUE in the December 2002 rating decision because the Veteran has never made such a claim and the issue has not previously been adjudicated by the RO. See 38 C.F.R. §§ 20.200, 20.202, 20.302. Accordingly, the Board finds that the December 2002 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Consequently, the Board finds that effective date for the assignment of the 20 percent rating for the right knee meniscus tear, status post-surgery, may be no earlier than a new application; at some point in time after the final December 2002 rating decision In this regard, the record reveals that on July 24, 2007, the RO received a writing from the Veteran in which he claimed increased ratings for his service connected disabilities. In a July 2008 rating decision, the RO denied the Veteran’s claim for a compensable rating for his right knee meniscus tear, status post-surgery. The Veteran perfected an appeal as to that decision. In February 2011, the Board issued a decision granting a 20 percent rating for the right knee meniscus tear, status post-surgery. The Board’s decision was effectuated by a March 2011 rating decision with the disability assigned an effective date of July 24, 2007 (the date of receipt of the claims for increase). With the above criteria in mind, the Board finds as did the RO that the July 24, 2007, writing from the Veteran acts as his formal claim for an increased rating for his right knee meniscus tear, status post-surgery, as defined by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The Board will next see if the record contains an earlier informal claim. In this regard, while the record includes a number of earlier writings from the Veteran as well as VA treatment records, to include the May 2007 treatment record that documented his complaints and treatment for right knee crepitus and the June 2007 treatment record that documented his complaints and treatment for right knee pain and degenerative joint disease. However, the Board finds that none of the pre-July 24, 2007, records act as an earlier informal claim for an increased rating for his right knee meniscus tear, status post-surgery, because none indicates an intent to apply for one or more benefits under the laws administered by VA (i.e., an increased rating for a right knee meniscus tear). 38 U.S.C. § 5110; 38 C.F.R. §§ 3.157, 3.400; MacPhee, super. Lastly, because the effective date for an increased rating can be up to one year prior to receipt by the RO of the claim for an increased rating, the question remaining for the Board to consider and the question raised by the Court in the October 2017 memorandum decision, is whether there is a factually ascertainable worsening of his symptoms at any time in the one-year period prior to August 17, 2011. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98. In this regard, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s right knee meniscus tear, status post-surgery, was rated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Diagnostic Code 5258 provides a 20 percent rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. In this regard, the record does not show that the Veteran had a VA examination of the right knee during the July 24, 2006, to July 24, 2007, time period. Furthermore, the record during this time-period does not include a statement from the Veteran in which he reports on observable adverse right knee symptomatology such as pain, locking, and swelling. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board acknowledges as did the Court in the October 2017 memorandum decision that a May 2007 treatment record documented the Veteran’s complaints and treatment for right knee crepitus and a June 2007 treatment record documented his complaints and treatment for right knee pain and degenerative joint disease. The June 2007 treatment record also noted mild right knee swelling but no effusion or instability. Another June 2007 treatment record also noted right knee swelling but no erythema or crepitus. Tellingly, while Diagnostic Code 5258 provides a 20 percent rating when the Veteran’s adverse symptomatology including “frequent episodes of ‘locking,’ pain, and effusion,” the treatment records generated during this one-year time period only included a couple documented instance of pain, one instance of swelling, and no instances of locking. In fact, they include an opinion that the knee was stable. Therefore, the Board finds that the most probative evidence of record shows that there was not a factually ascertainable worsening of the Veteran’s symptoms at any time in the one-year period prior to August 17, 2011. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98; also see Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases). In other words, the Board finds that the manifestation of only two of the three required symptoms for an increased rating under Diagnostic Code 5258 on only one or two occasions (i.e., knee pain and swelling in June 2007) is not adequate to demonstrate that there was a factually ascertainable worsening of his symptoms during the July 24, 2006, to July 24, 2007, time period. Id. Given the above, the Board finds that that the preponderance of the evidence shows that the Veteran is not entitled to an effective date prior to July 24, 2007, for the award of 20 percent disability rating for his right knee meniscus tear, status post-surgery. Accordingly, the claim for an earlier effective date is denied. REASONS FOR REMAND Entitlement to a rating in excess of 70 percent for a major depressive disorder is remanded. As to the claim for a rating in excess of 70 percent for a major depressive disorder, a review of the record on appeal shows that the Veteran’s adverse symptomatology may have worsened since he was last examined by VA in September 2011. See, e.g., attorney pleading dated in October 2018. Therefore, the Board finds that a remand to provide the Veteran with a new VA examination is required. See 38 U.S.C. § 5103A(d); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). While the appeal is in remand status any outstanding VA and private treatment records should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(b). This issue is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records. If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). 3. Schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his major depressive disorder. The claims folder should be made available to and reviewed by the examiner. The examiner is to identify all pathology found to be present. The examination report must include a complete rationale for all opinions expressed. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel