Citation Nr: 18123776 Decision Date: 08/03/18 Archive Date: 08/02/18 DOCKET NO. 15-28 170 DATE: August 3, 2018 ORDER Entitlement to a rating of 70 percent, but no higher, for depression and anxiety from October 21, 2010 through October 9, 2013, and no earlier, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT The most probative evidence of record reflects that, for the rating period on appeal from October 21, 2010 through October 9, 2013, the Veteran’s depression and anxiety were manifested by symptoms productive of functional impairment comparable, at worst, to occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for depression and anxiety, from October 21, 2010 through October 9, 2013, have been met. 38 U.S.C. §§ 1155, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.321, 3.400, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1998 to March 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for depression and anxiety and assigned a 30 percent evaluation effective October 21, 2010. Although the Agency of Original Jurisdiction (AOJ) considered a subsequent July 2014 rating decision, which in part, granted an increased rating of 70 percent effective October 10, 2013 for depression and anxiety, as the rating decision on appeal, the Board finds the November 2011 rating decision is the correct rating decision on appeal. Within the one-year period following notification of the November 2011 rating decision, VA received notification of disagreement from the Veteran’s representative. Specifically, in an October 30, 2012 statement, the Veteran’s representative submitted a claim for an increased rating for the Veteran’s depression with anxiety, and further described the Veteran experienced daily symptoms of her depression and anxiety which interfered with her ability to work with others, conflict with authority figures, fatigue, and problems with family, work, mood and motivation. Construing the October 2012 statement liberally, the Board finds that it must be considered a notice of disagreement with respect to the November 2011 rating decision initial rating assignment. Following issuance of a statement of the case in July 2015, a substantive appeal was timely received within 60 days thereafter. As such, November 2011 rating decision is the rating decision on appeal. Further, although the Veteran, in a September 2014 notice of disagreement, indicated disagreement with the effective date of the award and the evaluation of her disability, she subsequent explained she was asking VA to increase her evaluation rating to 70 percent effective as of October 30, 2012. Thus, the Board, as done by the AOJ, has characterized the issue on appeal as entitlement to an effective date earlier than October 10, 2013, for a 70 percent evaluation for service connected depression and anxiety. Additional evidence was received by VA subsequent to the most recent, July 2015, statement of the case issued for the appeal herein. Specifically, such additional evidence included disability benefit questionnaires and VA treatment records. The Veteran did not waive AOJ review of this additional evidence. See 38 C.F.R. § 20.1304 (c) (2017). However, if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. See VBA Fast Letter 14-02. Here, although the Veteran’s substantive appeal was filed after February 2, 2013, the Board interprets such exception as applying only to evidence submitted by the Veteran. As described above, the record does not reflect that the additional evidence was submitted by the Veteran. Nevertheless, as claim at issue turns on the evidence already of record, to include whether the November 2011 rating decision was final, and when the level of disability was factually ascertainable, there is no prejudice to the Veteran by the Board’s adjudication at this time. 1. Entitlement to an effective date earlier than October 10, 2013, for a 70 percent evaluation for service-connected depression and anxiety The Veteran contends that she should be assigned an earlier effective date for the grant of the 70 percent evaluation for her depression and anxiety. Specifically, in a September 2014 notice of disagreement, the Veteran stated she was requesting a 70 percent evaluation from October 30, 2012. The initial question before the Board is determining the appropriate appeal period for consideration in order to determine the appropriate rating for the Veteran’s depression and anxiety. The effective date of an award based on a claim for increase in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (2012). Except as otherwise provided, the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2017). Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a) (2017). The claimant has one year from notification of a rating decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 3.156 (b), 3.160, 20.201, 20.302 (2017). As discussed in the introduction, the November 2011 rating decision granted service connection for depression and anxiety and assigned an initial evaluation of 30 percent, effective October 21, 2010. The November 2011 rating decision did not become final due to an October 30, 2012 statement from the Veteran’s representative liberally construed as constituting a notice of disagreement. Because the November 2011 rating decision granting service connection was not final, the Board may consider the entire rating period from October 21, 2010. As no disagreement has been expressed as to the effective date assigned for the award of service connection for depression and anxiety, such will not be further discussed. The next question before the Board is the appropriate evaluation to assign for the Veteran’s depression and anxiety symptoms for the period prior to October 10, 2013. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran’s depression and anxiety has been rated as 30 percent disabling prior to October 10, 2013, under Diagnostic Code 9434 for major depressive disorder. 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). As described above, the appeal period for consideration is from October 21, 2010 to October 9, 2013. Under Diagnostic Code 9434, a 30 percent evaluation requires 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). 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent rating is prescribed when there is evidence of 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is prescribed when there is evidence of 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. Id. A 100 percent rating is prescribed when there is evidence 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. Id. The Veteran was afforded two VA examinations for the period prior to October 10, 2013, specifically mental conditions disability benefits questionnaires were obtained in October 2011 and August 2013. The October 2011 examiner noted, in part, the Veteran reported symptoms of depressed mood, anhedonia, hypersomnia, fatigue, negative self-appraisal, depressogenic thought content, and mild problems with remembering administrative tasks. The October 2011 examiner found the Veteran’s level of occupational and social impairment with regard to all mental diagnoses was best characterized as 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. However, notably, the October 2011 examiner also stated, in part, that the intensity of the Veteran’s depressive symptoms was assessed to be severe, and had progressively worsened since the documented motor vehicle accident that took place in October 1998, and also stated, in part, the intensity of her anxiety was assessed to be severe. Further, the October 2011 examiner stated in part, because of overlapping symptoms, he was not able to differentiate what portion of the occupational and social impairment was caused by each mental condition, and based on the current findings, the intensity of the Veteran’s mental conditions were assessed to be severe, but further noted the caveat that the Veteran was also believed to have good coping skills, which could explain her mild occupational and moderate social impairment. The August 2013 examiner endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss, such as forgetting names, directions or recent events. The August 2013 examiner found the Veteran’s level of occupational and social impairment with regard to all mental diagnoses was best characterized as 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, or symptoms controlled by medication. However, notably, the August 2013 examiner further found that while the Veteran’s occupational impairment was mild, her social impairment was moderate. Additionally, VA treatment records dated during the pendency of the claim also documented the Veteran’s psychiatric symptomology. In this regard, a September 2012 VA treatment record noted the Veteran reported hypervigilance, increased anger, interpersonal detachment, and reactivity to reminders, and a May 2013 VA treatment records documented, in part, the Veteran reported she had been experiencing a pattern of anxiety, including symptoms of nervousness, sweating palms, headaches, reduced concentration, and nail biting. As noted above, in an October 30, 2012 statement, the Veteran’s representative described the Veteran experienced daily symptoms of her depression and anxiety which interfered with her ability to work with others, conflict with authority figures, fatigue, and problems with family, work, mood and motivation. In a September 2014 notice of disagreement, the Veteran described that the August 2013 examiner did not clearly listen to her symptoms of continuous depression and anxiety which had worsened and that she had more difficulty in establishing and maintaining effective work and social relationships since August of 2012. She further described she had impaired judgment making decisions, was forgetting to complete tasks at home and at work, and had difficulty with complex commands in her work setting. Similarly, in her August 2015 substantive appeal, the Veteran reported, in part, she felt uncomfortable and irritable with the August 2013 examiner as he was more interested in her work occupation and the outreach events offered for veterans as pertaining to her current occupation. It was indicated that she reported that she had been very upset and emotional after the examination on her way back home. In this regard, the Veteran is competent to attest to the factual matters of which she has first-hand knowledge, such as the observable symptoms of her depression and anxiety. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran’s statements to be credible, as they are not contradicted by the objective evidence of record. As such, they are afforded significant probative weight. Thus, in weighing the evidence, the Board finds Veteran’s symptoms of depression and anxiety more closely approximate the evaluation for 70 percent, but not higher, for the appeal period prior to October 10, 2013. While the Board notes that the October 2011 and August 2013 examiners endorsed lesser degrees of impairment, the Board finds that these assessments are outweighed by other evidence. Specifically, this evidence includes the Veteran’s own description of her symptoms, and her dissatisfaction with the August 2013 examination, as described in September 2014 and August 2015 statements, as well as the clinical findings reported of record. Moreover, as described above, the October 2011 examiner stated, in part, that the intensity of the Veteran’s mental conditions were assessed to be severe, and the August 2013 examiner characterized the Veteran’s social impairment as moderate, each of which findings support a higher evaluation. Thus, for these reasons, the Board finds that a rating of 70 percent is warranted throughout the rating period on appeal. Although some of the symptoms listed as examples for a 70 percent rating have not been evident, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21 (2017). Thus, the Board finds that the evidence demonstrates that it is as likely as not that there was occupational and social impairment with deficiencies in most areas for the period prior to October 10, 2013. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Although a 70 percent rating is warranted for depression and anxiety prior to October 10, 2013, an even higher rating is not warranted. The evidence has not shown that the Veteran’s depression and anxiety resulted in total occupational and social impairment at any point in the rating period prior to October 10, 2013. The Board recognizes that the record reflected symptoms such as memory loss, there is no indication that such was for the names of close relatives, or the Veteran’s own name or occupation. Furthermore, there was no evidence of 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 or disorientation to time or place. In this regard, in September 2012, November 2012, March 2013 and May 2013 VA treatment record, the Veteran denied suicidal ideation and homicidal ideation. A September 2012 VA treatment record documented, in part, the Veteran was alert and oriented, with judgment and insight intact. March 2013, April 2013 May 2013, and August 2013 VA treatment records documented, in part, the Veteran was neatly dressed in business attire, she was alert, cooperative, and talkative, her speech was within normal limits for rate, volume, and fluency, and her thoughts were logical and goal directed. Although the Veteran was socially isolated to some extent, the October 2011 examiner noted the Veteran was presently divorced, had been married twice, but was currently involved in a romantic relationship, and had been with her partner for five years. The October 2011 examiner noted the Veteran reported that she and her partner lived together, and she described their relationship as okay. She also reported she had two children and was responsible for the care of her partner’s two sons and described her relationships with her children as normal. The October 2011 examiner also documented the Veteran reported moderate problems with social functioning and that she participated in leisure activities with her partner and children, but her ability to enjoy these activities was reduced due to symptoms of depression and chronic pain, and other than the relationship she shared with her partner, she denied having close friends with whom she engages in activities. Similarly, the August 2013 examiner noted, in part, the Veteran was married at age 20, had a second marriage at age 24 and had a son from that union, and had a daughter from a long term relationship that ended in September 2012. Similarly, an October 24, 2013 posttraumatic stress disorder disability benefits questionnaire, dated proximate to the appeal period, also reported the Veteran had married and divorced twice and ended a five year relationship within the last year, and had two children. Regarding her social support network, the October 2013 examiner stated the Veteran reported that she had few friends in the area and spent most of her time at work or at home with her children. As such, the Board finds that the Veteran’s symptoms do not warrant a rating higher than 70 percent at any point during the appeal period. In making this determination, the Board considered the application of “staged” ratings, but found no additional distinctive periods where the Veteran’s service-connected depression and anxiety met or nearly approximated the criteria for higher rating other than that which has already been granted. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, to the extent the preponderance of the evidence is against a rating higher than or separate from that already assigned for depression and anxiety, the doctrine is not for application. In sum, resolving reasonable doubt in the Veteran’s favor, the Board finds the Veteran’s depression and anxiety, has been shown to result in functional impairment no worse than deficiencies in most areas, during the entire appeal period prior to October 10, 2013. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Additionally, the United States Court of Appeals for Veterans Claims has held that a request for a total disability rating due to individual employability resulting from service-connected disability (TDIU), whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but is rather part of the adjudication of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability. Id. at 454. Although the record reflects the Veteran’s depression and anxiety has resulted in functional impairment during the appeal period prior to October 10, 2013, the Veteran has not asserted, and the record does not demonstrate, that she was unemployable due to her service-connected psychiatric disorder at issue during this period. In this regard, the August 2013 examiner noted the Veteran was employed full-time and had been employed in her present position since 2008. Therefore, the issue of entitlement to a TDIU for the period prior to October 10, 2013 is not raised. Finally, the Board has considered the Veteran’s claim and decided entitlement based on the evidence of record. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel