Citation Nr: 20052984 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 20-23 168 DATE: August 10, 2020 ORDER An effective date earlier than February 23, 2010 for the grant of service connection for major depressive disorder (MDD) is denied. An initial rating higher than 50 percent for MDD prior to August 16, 2019 is denied. An initial 100 percent rating for MDD from August 16, 2019 is granted. FINDINGS OF FACT 1. Service connection for a psychiatric condition was denied in an unappealed July 2006 rating decision, and the Veteran filed a new claim for service connection for a psychiatric condition on February 23, 2010. 2. Prior to August 16, 2019, MDD was manifested by depressed mood, sleep impairment, difficulty establishing relationships, flattened affect, and short and long-term memory impairment. 3. From August 16, 2019, MDD was manifested by memory loss for concepts such as the names of close relatives, spatial disorientation, and an intermittent inability to perform activities of daily living. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 23, 2010, for the grant of service connection for MDD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.160(d), 3.400, 20.1103. 2. Prior to August 16, 2019, the criteria for an initial rating higher than 50 percent for MDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. From August 16, 2019, the criteria for an initial 100 percent rating for MDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Navy from September 1963 to September 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision. Effective Date 1. Grant of service connection for MDD The Veteran was granted service connection for his MDD effective from February 23, 2010. A review of the claims file shows that the Veteran filed a claim for service connection on that date. See February 2010 VA Form 21-4138 (“I would also like to add depression as a service connected (sic) secondary to my hearing loss and tinnitus.”). He had previously been denied service connection for a psychiatric condition in an August 2004 rating decision. He filed an untimely notice of disagreement to that rating decision in September 2005. He later to reopen the claim but was denied in a July 2006 rating decision, which was not appealed. Because the Veteran filed his request to reopen this previously denied claim on February 23, 2010, that is the correct effective date for the grant of service connection. 38 C.F.R. § 3.400(r) (with respect to claims to reopen, the effective date for an award of benefits will be the date of the new claim or the date entitlement arose, whichever is later). The U.S. Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that “the statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” See also Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran first sought to reopen his claim). Neither the Veteran nor his representative have put forth any argument which rebuts the above finding. Increased Rating Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Prior to August 16, 2019, the Veteran is assigned a 50 percent rating. From that date, he is assigned a 70 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. 2. MDD prior to August 16, 2019 Prior to August 16, 2019, a rating higher than 50 percent is not warranted. The Veteran underwent VA examinations in May 2012 and August 2014. The 2012 examiner stated that MDD resulted in only mild or transient symptoms, while the 2014 examiner found that it resulted in an occasional decrease in work efficiency and an intermittent inability to perform occupational tasks. Both findings demonstrate a level of impairment below that contemplated by the 50 percent rating. In addition, the examinations collectively noted the following symptoms: depressed mood, mood disturbances, mild memory loss, chronic sleep impairment, flattened affect, and difficulty establishing relationships. These are all expressly contemplated by the currently assigned 50 percent rating. Notably, the 2012 VA examiner also found that the Veteran’s MDD resulted in difficulty adapting to stressful circumstances, which is one of the manifestations associated with the higher 70 percent rating. However, the Board does not find that such a rating is warranted because both examiners assessed the total amount of impairment at less than the 50 percent rating, and no other manifestations associated with the 70 percent rating were found. The Board has also considered an October 2013 disability benefits questionnaire (DBQ) submitted by a private physician. This physician determined that the Veteran had total impairment from MDD, including from symptoms such as a near-continuous panic or depression, persistent hallucinations, an intermittent inability to perform activities of daily living, and an inability to maintain relationships. However, the Board does not find this report to be credible because it is wholly inconsistent with the above VA examinations and the outpatient treatment records generated before and after the DBQ. For example, while the Veteran reported hallucinations in the DBQ (in the form of voices coming from another room when he is alone), there is no indication of any such reports in VA outpatient records throughout the period from 2010 to 2019. Similarly, while the physician found an inability to perform activities of daily living, the Veteran’s outpatient records expressly state that he was able to cook and clean for himself and maintain adequate grooming. The physician also found the Veteran had scattered and inconsistent attention and concentration, yet this was not documented on any of the mental status examinations in the outpatient records. For these reasons, the DBQ is not credible when weighed against the other evidence of record. 3. MDD from August 16, 2019 From August 16, 2019, the Board finds that a 100 percent rating is appropriate. A VA examination conducted on that date noted several symptoms associated with the 100 percent rating, including memory loss for names of close relatives, spatial disorientation, and an intermittent inability to perform activities of daily living. On examination, the Veteran’s thought process was somewhat impaired. He had difficulty completing simple calculations and had a hard time recalling dates. He also endorsed feelings of worthlessness. Although the examiner stated that he experienced “deficiencies in most areas,” consistent with the 70 percent rating, the Board will resolve any reasonable doubts in his favor and assign the 100 percent rating. In contrast to the October 2013 DBQ above, these examination findings are not rebutted by any subsequently generated records, and therefore the Board finds them to be more probative in assessing the current state of the Veteran’s MDD. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, Counsel 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.