Citation Nr: 20060643 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 20-15 699 DATE: September 15, 2020 ORDER Entitlement to an effective date earlier than February 8, 2012 for the award of the grant of service connection for major depressive disorder (MDD) is denied. Entitlement to an initial evaluation in excess of 70 percent for MDD from February 8, 2012 to July 18, 2017 is denied. Entitlement to an effective date earlier than February 8, 2012 for the award of the grant of basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. On February 8, 2012, the RO received a claim for entitlement to service connection for depression; there was no communication prior to February 8, 2012 that could reasonably be construed as a formal or informal claim for entitlement to service connection for depression. 2. From February 8, 2012 to July 18, 2017, the Veteran’s MDD is not characterized by total occupational and social impairment. 3. The evidence demonstrates that February 8, 2012 is the earliest date the criteria for basic eligibility to DEA benefits were met. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than February 8, 2012 for the award of the grant of service connection for MDD have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 2. The criteria for entitlement to an initial evaluation in excess of 70 percent for MDD from February 8, 2012 to July 18, 2017 have not been met. 38 U.S.C. §§ 1155, 5103, 5013A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for entitlement to an effective date earlier than February 8, 2012 for the award of the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 1155, 3501, 3510, 5103, 5103A, 5107, 5113; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 3.400, 3.807(a), 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from March 1978 to August 1978, from March 1984 to July 1984, and from January 1988 to June 1990. 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 the November 2017 rating decision, the RO granted service connection for MDD and assigned a 70 percent evaluation, effective February 8, 2012; granted a 100 percent evaluation for MDD, effective July 19, 2017; and granted basic eligibility to DEA benefits from July 19, 2017. The Veteran appealed for earlier effective dates for MDD and DEA benefits and a higher initial evaluation for MDD prior to July 19, 2017. During the pendency of the appeal, the RO issued a March 2020 rating decision effectuating a June 2020 Board decision, which, in pertinent part, granted a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), effective February 8, 2012; granted an effective date as of February 8, 2012 for the award of the grant of DEA benefits; and granted special monthly compensation based on housebound criteria being met on July 19, 2017. The Veteran continued to appeal for an earlier effective for DEA benefits. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “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 fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Effective Date – Service Connection 1. Entitlement to an effective date earlier than February 8, 2012 for the award of the grant of service connection for MDD The Veteran generally asserts that he warrants an effective date prior to February 8, 2012 for the award of the grant of service connection for MDD. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d) (2014). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e) (2014). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R § 3.157. See 38 C.F.R. § 3.155; Fed. Reg. 57,660, 57,695 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2014). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1(p) (2014); 3.155 (2014). The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. On February 8, 2012, the Veteran filed an informal claim for service connection for depression. In a November 2017 rating decision, the RO granted service connection for MDD, effective February 8, 2012. The Veteran disagreed with the decision and filed for an earlier effective date. There was no communication, either formal or informal, prior to February 8, 2012 that constitutes as a claim for service connection for depression, and the Veteran has not otherwise established that there exists any such claim. According to the applicable regulation, the effective date of the grant of service connection can be no earlier than February 8, 2012, the date of the receipt of the claim, which was the date VA first received any communication indicating an intent to apply for service connection for depression. 38 C.F.R. § 3.400(b)(2)(i). The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The preponderance of the evidence is against the assignment of an effective date for the award of the grant of service connection for MDD earlier than February 8, 2012. Thus, since the Board finds no legal basis for assignment of an earlier effective date, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Evaluation 2. Entitlement to an initial evaluation in excess of 70 percent for MDD from February 8, 2012 to July 18, 2017 The Veteran asserts that his MDD is worse than his current evaluation reflects prior to July 19, 2017. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400. From February 8, 2012 to July 18, 2017, the Veteran’s MDD has been currently evaluated as 70 percent disabling, effective February 8, 2012, under 38 C.F.R. § 4.130, Diagnostic Code 9434. Under Diagnostic Code 9434, which is governed by a General Rating Formula for Mental Disorders, a 70 percent rating is warranted for 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); and/or inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126; see Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Id. 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. Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Board notes that the Diagnostic and Statistical Manual, Fourth Edition, allowed for the assignment of Global Assessment of Functioning (GAF) scores, which are a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. However, VA regulations were amended to adopt the Diagnostic and Statistical Manual, Fifth Edition (DSM-5), which eliminated the use of GAF scores for evaluating mental illness. 80 Fed. Reg. 14,308 (Mar. 19, 2015). As GAF scores are no longer held to be an effective method of evaluating the severity of psychiatric disabilities, the Board will not rely on any GAF scores in adjudicating the present claim. Golden v. Shulkin, 29 Vet. App. 221, 224–26 (2018). Based on a careful review of all the subjective and clinical evidence, the Board finds that from February 8, 2012 to July 18, 2017, the Veteran does not warrant a 100 percent evaluation under the General Rating Formula for Mental Disorders. In other words, the Veteran’s MDD does not more closely approximate total occupational and social impairment. In that regard, the Board finds that the following provides the most probative evidence demonstrating the frequency, severity, and duration of the Veteran's mental health symptomatology as well as its functional impact: (1) reports at a February 2012 VA clinic visit that the Veteran had a work accident, where he fell off a truck and fractured his ribs and had blurry vision; that he had been off work for the past five weeks; and that his depression had worsened since being away from work; (2) reports at an April 2013 VA clinic visit that the Veteran’s wife said that the Veteran had been depressed ever since he lost his job in November 2012; and that they had lost their home, and he was going to his truck; (3) clinical findings at a June 2013 Psychological Evaluation that the Veteran was only sleeping about four hours at night with frequent night awakening; had night sweats once or twice a week and chronic nightmares; had a low energy level; had reduced concentration; was less motivated to perform activities; had anxiety symptoms, which increased around crowds and lessened when he was accompanied; (4) a conclusion by the June 2013 psychologist that based on the mental status findings, the Veteran should be able to follow simple directions in a job situation, would likely be less distracted in a quiet work setting, and would be able to deal with others adequately especially in a low stress setting; (5) clinical findings documented by a private psychologist in a September 2013 Mental Disorders Disability Benefits Questionnaire (DBQ) that the Veteran had a depressed mood; anxiety; chronic sleep impairment; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and an intermittent ability to perform activities of daily living, including maintenance of minimal personal hygiene; (6) a determination by the September 2013 private psychologist that the Veteran’s depressive disorder due to another medical condition with mixed features caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood; and (7) reports made at VA clinic visits in 2015 and 2016 that the Veteran was angry, irritable, depressed, and anxious; he slept between four and five hours at night without medication; and he expressed being bored, because he could not drive anymore. Overall, the Board finds that despite the Veteran’s persistent and debilitating mental health symptomatology, the overwhelming evidence, during the relevant appeal period, does not demonstrate that his MDD is so incapacitating as to be consistent with the symptoms identified by the rating criteria for total occupational and social impairment. On that basis, the Board recognizes that the Veteran had continuously reported having symptoms of anger and irritability; however, the evidence does not show that the Veteran demonstrated grossly inappropriate behavior or a persistent danger of hurting self or others. Notably, even though the September 2013 private psychologist found that the Veteran had significant mental health symptoms, he concluded that the Veteran’s occupational and social functioning was more consistent with a 70 percent evaluation. All of this evidence tends to support that the Veteran’s mental health symptomatology is not so severe as to warrant a total evaluation under the General Rating Formula for Mental Disorders at any point during the relevant appeal period. Therefore, from February 8, 2012 to July 18, 2017, the Veteran’s MDD is no more than 70 percent disabling. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran’s higher than 70 percent initial evaluation claim for MDD from February 8, 2012 to July 18, 2017. Therefore, the benefit-of-the-doubt rule does not apply, and the higher initial evaluation claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Effective Date - DEA 3. Entitlement to an effective date earlier than February 8, 2012 for the award of the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 The Veteran is seeking an effective date prior to February 8, 2012 for the award of the grant of DEA benefits under 38 U.S.C. Chapter 35. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual’s application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, “eligibility date” means the date on which the individual became an eligible person as defined by 38 U.S.C. § 5113(a)(1), and “initial rating decision” means a decision by VA that establishes the veteran’s total disability as permanent in nature. 38 U.S.C. § 5113(b)(3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran’s discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). A permanent total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. The term “total disability permanent in nature” for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based upon an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(8). In a November 2017 rating decision, the RO awarded the Veteran basic eligibility to DEA benefits, effective July 19, 2017, based on the determination that he had a permanent and total service-connected disability by virtue of his evaluation for MDD. Subsequently, in a March 2020 rating decision, the RO granted the Veteran an effective date as of February 8, 2012, based on the determination that he had a permanent and total service-connected disability by virtue of his TDIU evaluation. Since the effective date for DEA benefits is directly related to a finding that the Veteran has a total disability that was permanent in nature, an effective date prior to February 8, 2012 is not warranted, as the effective date of his TDIU has not changed. In summary, the preponderance of the evidence weighs against finding in favor of the Veteran's claim for an effective date earlier than February 8, 2012 for the award of the grant of basic eligibility to DEA benefits under 38 U.S.C. Chapter 35. Therefore, the benefit-of-the-doubt rule does not apply, and the earlier effective date claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw 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.