Citation Nr: 18157598 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 18-31 166 DATE: December 13, 2018 ORDER Entitlement to an earlier effective date of October 5, 2017, for the grant of entitlement to service connection for major depressive disorder is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for major depressive disorder is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed a claim of entitlement to service connection for a mental disorder, which was received October 5, 2017. 2. The record does not contain evidence that a formal or informal (prior to March 24, 2015) claim of entitlement to service connection for a mental health disorder was filed prior to October 5, 2017. There is no indication that the Veteran filed an intent to file notice within one year prior to October 5, 2017. CONCLUSION OF LAW The criteria for an effective date prior to October 5, 2017, for a grant of service connection for major depressive disorder, have been met. 38 U.S.C. § 5110 (2014); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the U.S. Army from May 1978 to May 1981, and from November 1982 to March 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. On the Veteran’s March 2018 Notice of Disagreement (NOD), he selected that he disagreed with the effective date assigned for his major depressive disorder. He also noted in the margin that he was seeking a 70 percent rating for his major depressive disorder. The Veteran was provided an initial 70 percent rating in the November 2017 rating decision. The RO interpreted this NOD as one for both an increased rating and an earlier effective date, and addressed both issues in the April 2018 Statement of the Case (SOC). The Veteran then submitted a substantive appeal for both issues; as such, the Board will address both earlier effective date and increased rating claims related to the Veteran’s service-connected major depressive disorder. 1. Entitlement to an effective date prior to October 10, 2017, for the grant of entitlement to service connection for major depressive disorder. The Veteran and his representative did not provide any argument related to the claim of entitlement to an earlier effective date for the grant of entitlement to service connection for major depressive disorder. However, upon reviewing the claims file, the Board found that the Veteran’s claim was received on October 5, 2017. As such, the Board will provide the earlier effective date of October 5, 2017. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall 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 (b)(2). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 38 C.F.R. § 3.1. The amendments are effective for claims and appeals filed on or after March 24, 2015, such as here. The Veteran submitted Fully Developed Claim, VA Form 21-526EZ for a “mental health condition” on October 5, 2017. Although the document is uploaded into the electronic record as having been received on October 10, 2017, the priority mail envelope has a handwritten notation of “Received 10-5-17.” The Veteran also signed the claim form on October 5, 2017. A review of the record did not include any notations that the Veteran contacted VA within one year of the October 5, 2017 claim form to indicate his intent to file a claim. Additionally, the record does not include any prior claims of entitlement to service connection for a mental health condition, either on the appropriate form (from March 24, 2015 onward) or informally prior to March 24, 2015. As there is no indication of a claim prior to October 5, 2017, and the Veteran’s depression had been diagnosed as early as 2009, his date of claim (October 5, 2017) is the appropriate effective date for the grant of entitlement to service connection for major depressive disorder. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 70 percent for major depressive disorder and entitlement to TDIU is remanded. The Veteran is seeking an increased rating for his service-connected major depressive disorder. From at least as early as 2012, the Veteran has argued for a combined 100 percent rating for his disabilities. However, the record has indicated that he was working as a nurse until at least May 2018. In 2015 and 2016, the Veteran argued that he could no longer work as a cardiac critical care nurse due to the physical demands of the job and his limitations due to his lumbar spine, knee, and leg disabilities. He was granted entitlement to service connection for major depressive disorder secondary to pain from his service-connected disabilities in November 2017, and was provided an initial 70 percent rating. On his March 2018 NOD, the Veteran stated that he should be provided a 100 percent rating so that he can retire from working. A total rating for compensation based on individual unemployability (TDIU) is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Court, in Bradley v. Peake, 22 Vet. App. 280 (2008), found that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of a TDIU predicated on a single disability (perhaps not ratable at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). Due to the potential of entitlement to SMC, the Veteran’s increased rating and TDIU claims are intertwined. The record currently contains very few treatment records related to the Veteran’s depressive disorder. A December 2009 VA treatment record noted the Veteran had a history of depression, and was doing well on low-dose 50 mg Sertraline. The treatment record containing the Veteran’s initial diagnosis is not contained in the record. VA treatment records from 2013 noted that his depression was controlled with medication and he denied a depressed mood. In February 2014, the Veteran reported increased irritability and temper. He declined a referral for counseling, but accepted an increased Sertraline dose (150 mg). Subsequent February 2014, October 2016, March 2017, and May 2017 VA treatment records included that the Veteran’s depression was stable on 100 mg Sertraline, and the Veteran denied depressed mood, feeling down, or any mood changes. Only the October 2016 treatment record contained a limited mental status evaluation, which noted the Veteran denied suicidal and homicidal ideation, he denied mood disturbance, and he had appropriate thought content and linear thought process. He was noted to be “doing well” as related to his depression diagnosis. The record does not contain a record related to why his Sertraline dose was decreased from 150 mg to 100 mg between February 2014 and October 2016. If the Veteran ever received psychiatric treatment by a psychiatrist or psychologist, or if he ever participated in counseling is not clear from the record. The limited VA treatment records related to his depression were addressed by his primary care physician. Given that the Veteran is seeking a total occupational and social functioning disability rating for his major depression, the Board presumes that there are psychiatric treatment records available. The Board notes that the Veteran worked for nearly 30 years as a registered nurse, including as a head nurse, in cardiac care, and in an emergency department. On remand, any VA psychiatric treatment records must be obtained and associated with the record, and the RO should request that the Veteran provide releases for any private psychiatric care. In October 2017, the Veteran submitted a Mental Health Disability Questionnaire filled out by psychologist R.J.D in September 2017. The psychologist provided an address in Puerto Rico, so it is unclear if the psychologist ever treated the Veteran, but a request for his treatment records should be included. The psychologist noted that the Veteran’s major depressive disorder resulted in occupational and social impairment with reduced reliability and productivity (the criteria for a 50 percent rating). During this interview, the Veteran reported his dislike of his current nursing position as an infection control nurse. He felt that his prior work in the cardiac surgery unit was more existing and satisfying, and that his current full-time position did not use his experience and knowledge. He wanted to work until age 62, but did not think he had the physical ability to do so. He noted that he was “recently counseled by his supervisor about his interpersonal style in the performance of his job,” and that he had an “upcoming meeting with the medical staff and he predicts it will be about his attitude.” In November 2017, the Veteran was afforded a VA examination. The examiner again expressed that the Veteran’s major depressive disorder symptoms resulted in occupational and social impairment with reduced reliability. During this evaluation, the Veteran reported that he worked as an Emergency Department technician and registered nurse, and that he was concerned about being fired due to multiple days off from the pain associated with his physical disabilities. He reported impaired impulse control related to alcohol and medication use, but did not report any inappropriate behavior. Again, the Veteran was provided a 70 percent rating in a November 2017 rating decision. He filed a NOD for the rating in March 2018. He received a SOC continuing his 70 percent rating in April 2018. In June 2018, the Veteran submitted a “Documentation of Counseling” document from work related to the Veteran demonstrating inappropriate and unprofessional behavior at work. The date of counseling was noted to be May 25, 2018. The paperwork included that the Veteran made derogatory comments on the attractiveness of female coworkers on May 14 and 15, 2018. He also made a joke about a “boss in training” that was clearly made an employee feel “uncomfortable” on May 17, 2018. He was noted to have made discourteous conduct towards superiors and coworkers through failing to acknowledge people, short answers, and failing to make eye contact (no date provided). He had insubordination in failing to classify certain infection cases as explicitly instructed, and he permanently deleted case investigation records after it was discovered he made a mistake. He also removed his shoes and walked around the workplace, including while representing the IPC Department at a corporate committee meeting in the boardroom (no date provided). Although several of these disciplinary records are not date, the ones that are dated occurred after the Veteran sought an increased rating/total disability (and stated his wish to retire). Given that inappropriate behavior was not a symptom reported during his 2017 examinations, an additional examination should be provided to determine if there has been an increase in the Veteran’s psychiatric symptoms or if he no longer wished to be employed as an infection nurse. Again, the Veteran has sought a 100 percent schedular rating or combined rating since 2012; however, he has been employed throughout this period. The May 2018 counseling record indicated that the Veteran was to have a formal written documentation of counseling, and that he had to show immediate improvement in behavior or performance or further disciplinary action would be taken, to include possible discharge of employment. He signed that document on May 30, 2018. On his substantive appeal, signed June 1, 2018, the Veteran stated that “this week” he was relieved from his job as a nurse due to grossly inappropriate behavior. Unless the Veteran was discharged on May 31, 2018 (in which case, he likely would have said “yesterday” instead of “this week”), this does not appear to be an accurate statement of his employment status. On remand, the Veteran should be provided with a TDIU claim form, so that VA can have a better understanding of his employment history, to include the last date he had substantially gainful employment. The matters are REMANDED for the following action: 1. Provide the Veteran VA Form 21-8940 and request he provide details regarding his employment history and education. An appropriate period of time should be allowed for response. 2. After receiving a VA 21-8940, VA 21-4192 forms must be requested of his prior employers. 3. Ask the Veteran to complete a VA Form 21-4142 for psychologist R.J.D. (from the September 2017 mental health questionnaire), and for any other private psychiatric care provider. Make two requests for the authorized records from any psychiatric care providers cited by the Veteran, to include Dr. R.J.D., unless it is clear after the first request that a second request would be futile. 4. Obtain the Veteran’s VA treatment records related to his diagnosis of and treatment for major depressive disorder/depression. Current records show a diagnosis of depression from at least 2009. Any counseling or psychiatric records from his initial diagnosis (at least 2009) to the present should be added to the claims file. 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected major depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his major depressive disorder alone. In May 2018, the Veteran was counseled by his employer for inappropriate and discourteous behavior, some of which is noted ot have occurred in May 2018. The examiner should elicit information from the Veteran regarding the onset/a description of his inappropriate behavior at work (or outside of work). Currently, the record does not show that the Veteran ever received counseling or was treated by a psychiatrist. The examiner should elicit details from the Veteran regarding his psychiatric treatment history. 6. After completing the development requested above, readjudicate the Veteran’s claims. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto. The case should then be returned to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M.H. Stubbs, Counsel