Citation Nr: 20051981 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 10-42 765 DATE: August 5, 2020 ORDER An increased rating of 70 percent, but no higher, for depressive disorder associated with bladder cancer is granted. An earlier effective date than February 14, 2012 for a grant of a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s depressive disorder associated with bladder cancer resulted in occupational and social impairment with deficiencies in most areas; the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. 2. A TDIU rating is effective February 14, 2012, the date of service connection for his depressive disorder upon which the TDIU award was based. The Veteran’s residuals of bladder cancer did not worsen within one year prior to his March 21, 2012 claim for an increased rating. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2019) 2. The criteria for an earlier effective date than February 14, 2012 for the grant of a TDIU rating have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1951 to June 1954. This matter comes before the Board of Veterans’ Appeals (Board) on remand from the United States Court of Appeals for Veterans Claims (Veterans Court). It was originally before the Board on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA). In August 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) other than the undersigned; a transcript of that hearing is of record. That VLJ is no longer with the Board. In January 2018, the Veteran was offered the opportunity to testify at a hearing before another VLJ. See 38 U.S.C. § 7107(c); 38 C.F.R. § 20.707. The Veteran responded that he did not wish to appear at another Board hearing. See March 2018 correspondence. 1. An increased rating greater than 50 percent for depressive disorder associated with bladder cancer. I. Legal Criteria The Veteran’s depressive disorder is currently rated at 50 percent under the General Rating Formula for Mental Disorders (General Formula). A 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity. This may be 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. 38 C.F.R. § 4.130, Code 9434. A 70 percent evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be 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. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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 list of symptoms in the General Formula is not intended to constitute an exhaustive list but provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. As relevant to this case, the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Veterans Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board assigns the GAF scores mentioned in the record no probative value and will not discuss them specifically. See also Golden v. Shulkin, 29 Vet, App. 221 (2018). II. Factual Background and Legal Analysis The Veteran is currently rated at 50 percent, but he reports that this rating does not correctly capture the severity of his condition. Throughout the period on appeal, the Veteran and his spouse have reported fatigue, depression, anxiety, mild memory loss, and low motivation. At his August 2015 Board hearing, the Veteran testified that his depression causes irritability, angry outbursts, and panic attacks due to arguments with his wife. He has thoughts of self-harm and at times has reduced hygiene. He does not socialize with people other than his wife. See October 2015 Hearing Transcript. All of these symptoms they are competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds that these statements are credible and are, therefore, entitled to probative weight. The Veteran was provided with VA psychological examinations in October 2012 and February 2017. The Veteran reported to the October 2012 VA examiner that he had some minor memory problems and depressed and anxious moods. On mental status examination, the Veteran was appropriately dressed, neatly groomed, had an appropriate mood, good eye contact, good insight, judgment, and concentration. The examiner noted that the Veteran reported that his marriage of 60 years was still “healthy and going strong.” The examiner opined that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The February 2017 examiner noted depressed mood, anxiety, mild memory loss, and disturbances of motivation and mood. On mental status examination, the Veteran had good eye contact, appeared open and forthright, and showed no evidence of hallucinations, delusions, paranoia, or suicidal or homicidal ideations. The examiner opined that the Veteran had 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. At his May 2017 VA examination for a social work and industrial survey, the social worker noted the Veteran had long standing depression severe enough to interfere with his ability to maintain gainful employment and most of his friends had died, leaving him with no social relationships and no group memberships outside of his family. His wife reported mood and affect disturbances, sometimes on a daily basis. He was able to provide his own vocational and educational history. VA outpatient treatment records show occasional treatment for his depression. In a September 2013 treatment note, the Veteran reported excessive worry and neurovegetative symptoms which were not improved with medication. He was anxious about his health problems and noted an increase in memory problems while talking. He further reported self-isolation and easily provoked anger or irritability. On mental status examination, the Veteran was casually dressed but disheveled. He had pressured, rapid speech, but normal tone and volume, with affect congruent to his anxious and irritable mood. His thought process was ruminative on his frustration, but was otherwise goal directed. Judgment and insight were intact, and he was cooperative with good eye contact. His memory was fair with some poor recall. He did not have homicidal ideation, suicidal ideation, hallucinations or delusions. He was noted to be particularly irritable towards his wife. His September 2013 follow up appointment reflected some progress with medication, but his overall mental picture remained similar. Having reviewed the evidence of record for the entire period under appeal, the Veteran’s symptoms more nearly approximate occupational and social impairment with deficiencies in most areas due to his self-harm ideation, near continuous depression, his irritability towards one of the few social relationships he has, his neglect of personal appearance and hygiene, and his inability to establish and maintain new effective relationships with persons other than his wife. However, the preponderance of the evidence is against a finding of total social and occupational impairment. The Veteran has continued to be able to socialize with his wife and has had appropriate interactions with his medical service providers. He is not delusional and does not show gross impairment of thought or communication. While he experiences memory loss, it has never been extreme as to relate to the names of his close relatives or his own name. Notably, has been able to recount the details of his occupational history some 50 years ago. He is not generally disoriented to time or place. The Board acknowledges the Veteran’s competent and credible reports of relevant symptoms and appreciates the diligent efforts to describe these symptoms while living with significant disability. However, these symptoms are most consistent with a 70 percent rating. Although the Veteran may believe that a higher rating is warranted, this belief is outweighed by the more probative medical evidence of record and the findings of the VA examiners. Based on the examiners’ reports and in consideration of the Veteran’s reported symptoms and signs in treatment examinations, a rating higher than 70 percent is not warranted. 2. An earlier effective date than February 14, 2012 for a grant of a total disability rating due to individual unemployability (TDIU). I. Characterization of Claim The Board acknowledges that this issue has heretofore been adjudicated as entitlement to a TDIU rating prior to February 14, 2012. However, this issue is more properly characterized as an issue of whether an earlier effective date than February 14, 2012 is warranted. This is because of the procedural posture in which the claim arose and has been adjudicated. The matter of a TDIU rating was raised in a September 2015 Board decision as part of the Veteran’s claim for an initial increased rating of his depression. In the same decision, the Board dismissed the Veteran’s only other increased rating claim. On remand, the RO granted an initial TDIU rating from February 14, 2012, but noted that this was only a partial grant of the benefit sought on appeal. However, because the Veteran did not have any other pending increased rating claim, the RO’s grant reflected a 100 percent grant of compensation benefits for the entire period on appeal. Despite this, the RO continued to adjudicate the matter as if it were not a full grant in the December 2017 supplemental statement of the case. The May 2018 Board decision continued to adjudicate it as such, and the Veterans Court took up the issue as a staged rating. However, as further explained below, there is no possible earlier effective date than the date of claim. Because of this, it is not an issue of a staged rating and is instead a matter of the propriety of the chosen effective date. II. Legal Criteria A claim for a TDIU rating is fundamentally a claim for an increased rating, and the effective date of an award on such claim is the date of service connection for an initial increased rating claim or, for non-initial claims, the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, the effective date of a TDIU rating cannot be earlier than the effective date of the award of service connection for the disability or disabilities upon which the award of the TDIU rating is based. Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). III. Factual Background and Legal Analysis In this case, the Veteran was granted a TDIU rating based on his service-connected depressive disorder, for which service connection was established effective February 14, 2012. See July 2017 Social Work and Industrial Survey; December 2017 Rating Decision. This effective date was assigned because that is the date that service connection was granted for the Veteran’s depressive disorder. See February 2012 Informal Claim. The effective date was set in a rating decision which has since become final in that respect. See July 2013 Rating Decision; see also August 2013 Notice of Disagreement (NOD) (not including an appeal of the effective date assigned). Accordingly, a TDIU rating earlier than February 12, 2012 cannot be assigned because that would predate the date of service connection for the underlying disability. See Delrio v. Wilkie, 32 Vet. App. 232, 248 (2019). The only other disability which might possibly provide an earlier effective date than February 14, 2012 is his service-connected bladder cancer residuals. Historically, the Veteran was in receipt of a 100 percent rating through October 2010, at which point his disability was reduced to a 40 percent rating. See August 2010 Rating Decision. The Veteran then made a claim for an increased rating for this disability on March 21, 2012. See March 2012 Informal Claim. The Board notes that the Veteran withdrew his claim for an increased rating greater than 40 percent for bladder cancer residuals and that issue has already been dismissed in accordance with his requested withdrawal. See September 2015 Board Decision. This means that the Veteran’s claim for an increased rating for residuals of bladder cancer cannot form the basis for assigning the TDIU effective date because that claim ceased to be pending. Nevertheless, even if the Board were to presume both that a TDIU rating claim was still on appeal despite the dismissal and that his bladder cancer residuals of urinary frequency are, hypothetically, the sole cause of unemployability, the Veteran’s bladder cancer residuals would still have to have worsened within the year prior to March 21, 2012. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran did not require maintenance treatment for cancer in the year prior and did not have an increase in urinary frequency or use of appliances in the year prior. See April 2011 VA Examination; February 2012 VA Treatment Note; April 2012 VA Examination. The Veteran’s renal insufficiency has not been treated as related to his bladder cancer, see February 2013 VA Examination, but even if the Board were to presume a relationship to his bladder cancer residuals, his renal cysts were unchanged in March 2011 from prior imaging and his kidney disease was characterized as “stable” during the year prior to the relevant claim. See March 2011 VA Treatment Note; August 2011 VA Treatment Note; April 2012 VA Examination. Thus, the preponderance of the evidence is against a finding that the Veteran’s bladder cancer residuals worsened in the year prior to his March 21, 2012 claim. The Veterans Court has ordered that the Board consider the Veteran’s educational background in deciding this claim. See January 2019 Joint Motion for Remand. The Board has considered the Veteran’s educational background and finds that it has no effect on the assignment of an effective date because the effective date is the latest of the date of the claim or the date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The earliest relevant date of claim was February 14, 2012, which is already the effective date for his TDIU rating. The Board understands that the Veteran is seeking compensation for his longstanding disabilities; however, in this case, an effective date earlier than February 14, 2012 for a TDIU rating has no basis in law and cannot be granted. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lambert The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.