Citation Nr: 1817708 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 14-23 668 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for a mood disorder not otherwise specified (NOS) prior to July 10, 2015. 2. Entitlement to a total rating due to unemployability caused by service connected disability (TDIU). 3. Entitlement to an earlier effective date prior to December 7, 2012, for the grant of service connection for a mood disorder (NOS). ATTORNEY FOR THE BOARD K. D. Cross, Associate Counsel INTRODUCTION The Veteran had active service with the United States Army from November 1983 to March 1984 and from April 1994 to October 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a April 2013 and June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The April 2013 decision granted service connection for a mood disorder and assigned a 70 percent rating effective from December 7, 2012. The June 2013 decision denied entitlement to TDIU; although separately claimed, the TDIU issue is considered part and parcel of the appeal for increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a September 2015 rating decision, the RO increased the Veteran's mood disorder rating to 100 percent effective July 10, 2015. As this is the maximum possible evaluation, it represents a full grant of the benefit sought on appeal for the period since July 10, 2015. FINDINGS OF FACT 1. Prior to July 10, 2015, the mood disorder was not productive of total occupational and social impairment. 2. The Veteran is unable to obtain and maintain substantially gainful employment due to service-connected disability. 3. The first claim of service connection for any mental disorder was received on December 7, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for a mood disorder (NOS) prior to July 10, 2015 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9435 (2017). 2. The criteria for TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16 (2017). 3. The criteria for an effective date earlier than August 26, 2000 for the award of service connection for a mood disorder (NOS) are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has duties to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor representative has raised any issues with the duty to notify or duty to assist. 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 does not raise them before the Board. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). Different ratings may be assigned for separate periods of time if distinct periods are shown by the competent evidence of record during the pendency of the appeal that warrants a different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA provides a rationale for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). The Veteran's mood disorder has been rated under 38 C.F.R. § 4.130 (2017), Diagnostic Code (DC) 9435 which pertains to unspecified depressive disorder. With the exception of eating disorders, all mental health disorders are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. See 38 C.F.R. § 4.130 (2017). Under the General Rating Formula, 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); inability to establish and maintain effective relationships, is rated 70 percent disabling. A 100 percent disability rating requires a showing of 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9435. VA medical treatment records from September 2012 through February 2013 show that the Veteran received treatment for symptoms associated with a psychiatric disorder. The February 2013 treatment note reported that the Veteran was working odd jobs, residing with his mother, sober and had a supportive spouse. A note indicated "mild psychotic". In an April 2013 VA examination, the examiner found that the Veteran's mood disorder was marked by speech that is intermittently illogical, irrelevant, and obscure. He was vague, unfocused, "extremely tangential," and difficult to redirect during the examination. The examiner had trouble following the Veteran's thought process, and noted flight of ideas. The examiner consulted with the treating doctor, who verified the impressions. Behavior was at times inappropriate on interview, as when laughing while discussing being arrested and jailed. The Veteran was noted as being pleasant throughout the evaluation. He did report at times suicidal thoughts, but denied current suicidal or homicidal ideation. He did not deny plan or intent. The Veteran stated he worked in the music industry at times, and had recently worked for moving and shipping companies. Although his physical difficulty with lifting played a role in losing employment, his paranoia also factored in. The Veteran was a poor historian, and so getting an accurate job history was troublesome. The Veteran's next VA psychiatric examination was not until July 10, 2015 in which he exhibited the criteria for entitlement to a rating of 100 percent. Considering the April 2013 examination, and the documentation of social and occupational function, to include the ability to socialize with others, the Board finds that the disability has not been manifested by total social and occupational impairment prior to July 10, 2015. The Veteran can be difficult to communicate with, but reality testing in intact if a bit distorted. He is not found to be a danger to himself or others, and his behavior may be off-putting but is not grossly inappropriate. He cannot recall timelines or accurate histories, but his memory for his friends and family appear intact. He in fact indicates he socializes fairly often, or at least takes part in group activities. The overall disability picture presented more closely approximates the criteria for a 70 percent rating. An increased, 100 percent rating is not warranted. TDIU TDIU may be assigned, if the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a) (2017). At all times during the appellate period, the Veteran met the schedular eligibility requirements. The central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board finds that the mood disorder alone renders the Veteran unemployable prior to July 10, 2015. While his service-connected right wrist injury may impede his ability to perform some forms of physical labor, it is his inability to focus or communicate effectively which precludes employment. Whether working alone or in a group, at a desk or at physical labor, the Veteran is not capable of the concentration and attention necessary to obtain or retain substantially gainful employment. Even assuming that his reports of trade school education are accurate, the Veteran is currently not able to apply any skills in an organized manner in the workplace. Accordingly, the Board finds that the criteria for TDIU are met prior to July 10, 2015. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110. The implementing regulation clarifies that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the original claim or the date the entitlement arose, whichever is later." 38 C.F.R. § 3.400 (2017). The Veteran's claim was filed on December 7, 2012, and the date of receipt of the claim was assigned as the effective date. There is no communication or filing indicating any earlier date of receipt of claim for a mental disorder. Further, the diagnosis of the condition pre-dated the filing of the claim. Accordingly, the RO has assigned an effective date accurately reflecting the evidence of record and the applicable laws and regulations. No earlier effective date is warranted. The Board notes that the Veteran has made no specific allegations or arguments regarding his appeal for an earlier date, merely the bare assertion of entitlement. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to a rating in excess of 70 percent for a mood disorder prior to July 10, 2015 is denied. Entitlement to TDIU is granted. Entitlement to an effective date prior to December 7, 2012, for the grant of service connection for a mood disorder, is denied. ____________________________________________ WILLIAM H. DONNELLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs