Citation Nr: 21063421 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 17-61 954 DATE: October 14, 2021 ORDER Entitlement to an effective date of March 18, 2016 for the award of a 50 percent evaluation for migraine headaches is granted. Entitlement to an effective date of December 12, 2016 for the award 70 percent for service-connected major depressive disorder is granted. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for a headache disability was received by VA on March 18, 2016. 2. An increase in headache disability symptoms is not factually ascertainable in the year prior to this claim. 3. The Veteran's major depressive disorder underwent an increase in severity in December 2016 and an effective date December 12, 2016 is assigned based on when his disability worsened. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 18, 2016, but no earlier, for the grant of an evaluation of 50 percent for headache disability are met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.124(a), Diagnostic Code 8100. 2. The criteria for an effective date of December 12, 2016 for the grant of an evaluation of 50 percent for major depressive disorder disability are met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal of September 2016 and April 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an effective date of March 18, 2016 for the award of a 50 percent evaluation for migraine headaches is granted. The Veteran filed a timely notice of disagreement for the issues of entitlement to initial evaluation in excess of 50 percent for major depressive disorder and entitlement to an earlier effective date for the assignment of a 50 percent evaluation for headaches. The Board denied these claims in May 2019 and the Veteran appealed the Board decision to the U.S. Court of Appeals for Veteran's Claims (Court). In April 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacated and remanded the portion of the Board's May 2019 decision which denied earlier effective dates listed above, finding that the Board did not fully address all favorable evidence in the record. See April 2021 JMPR. In particular, the Board failed to address December 2016 statements from the Veteran, signed by a physician, that he experienced 1-2 days a week of incapacitating episodes of depression and headaches 1-2 times per week that were incapacitating. See December 2016 Statement. The Veteran contends that he is entitled to an effective date prior to January 31, 2017 for the issues listed above. Specifically, he contends that the effective date should be in August 2012, when he filed his claim for service connection for psychiatric disability. See May 2017 Notice of Disagreement. Laws and Regulations Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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(a). The effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of the claim or the date entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2). The effective date of an award of increased compensation shall be 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 will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In general, a complete claim must be filed on a form prescribed for the purpose and will be considered filed as of the date it was received by VA. 38 C.F.R. § 3.155(d). A claimant who indicates a desire to file for benefits from VA that does not meet the standards of a complete claim is considered a request for an application form. 38 C.F.R. § 3.155(a). A claimant may also submit a saved electronic application, an intent to file form, or have an oral statement of intent to file to a VA employee designated to receive such a communication may constitute an intent to file a claim. 38 C.F.R. § 3.155(b). If a complete claim is received within one year of the filing of an "intent to file," the complete claim will be considered filed as of the date of receipt of the intent to file a claim. 38 C.F.R. § 3.155(d)(1)(ii). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Analysis As to the Veteran's assertions regarding the effective date of his 50 percent rating for a headache disability, the Board finds the Veteran did not file a claim for increase in the August 2012 claim, but rather, he filed a claim for an increased rating for headache disability in March 2016. See August 2012 Claim; see also March 2016 Claim. The Veteran asserts the effective date of his 50 percent rating for a headache disability should be as of his August 2012 claim. See May 2017 Notice of Disagreement. In the alternative, the Veteran also asserts that his effective date should be as of a December 2016 Family and Medical Leave Act (FMLA) document showing an increase in disability received by VA in February 2017. See September 2021 Informal Hearing Presentation. The Veteran was awarded service connection for headaches in a 1982 rating decision. He was afforded proper notice of the decision. He did not file a notice of disagreement as to that decision. Similarly, no additional evidence was received within one year of the notice of the rating decision. The 1982 rating decision is, therefore, final. The Veteran did not file a claim for increase for his headaches until March 2016. In August 2012, he filed a claim listing instead pseudofolliculitis barbae, PTSD, and conditions of the sinus, bilateral knee, lower back, and right hand. See August 2012 VA Form 21-526 Veterans Application for Compensation or Pension. Headaches were not mentioned. As a result, the Board cannot find that the August 2012 filing was a claim for an increase for his headaches. Following an August 2015 rating decision, the Veteran filed a March 7, 2016 Notice of Disagreement listing headache disorder as an issue. The RO responded on March 16, 2016 that the Veteran would have to use the proper form if he wished to file a claim. See March 2016 NOD; see also March 2016 Correspondence. First, the Board notes that the March 7, 2016, form was not a claim form. As it was not on a form prescribed for the purpose of filing claims, the submission is not a claim. 38 C.F.R. § 3.155(d). The filing was also not a saved electronic application, on an intent to file form, or an oral statement to a VA employee designated to receive such a communication. Accordingly, it cannot constitute an intent to file to which the March 18, 2016, claim may be imputed. 38 C.F.R. § 3.155(b). The RO interpreted the filing as a request for an application form. This does not constitute a claim filing. 38 C.F.R. § 3.155(a). Accordingly, the Veteran filed the first claim for an increased rating for headache disability was received by VA in March 2016. See March 2016 VA Form 21-526EZ, Fully Developed Claim (Compensation). While the Board previously found the appeal arose from a claim for unemployability filed in January 2017, the Veteran's March 2016 claim for increase was pending and unadjudicated when the claim for a TDIU was received. There is no withdrawal of the March 2016 claim of record. The Board finds the date of claim for his increased rating for headache disability was received March 18, 2016. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). Under Diagnostic Code 8100, a 50 percent rating is appropriate with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is appropriate with characteristic prostrating attacks average one in two months over the last several months. Id. A 0 percent rating is appropriate with less frequent attacks. Id. The rating criteria do not define the term "prostrating." According to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), pg. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." Essentially the same definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), which defines "prostration" as "extreme exhaustion or powerlessness." Severe economic inadaptability does not mean a claimant is completely unable to work, and the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 400 (2004). The Veteran saw his primary care physician in February 2016 who noted that the Veteran had migraines since service. The Veteran's headache disability has been consistently described as daily, with sharp left temporal pain that is chronic and is caused by his service-connected cervical spine disability. See February 2016 Medical Record. The Veteran's headaches were in the left temporal area with a chronic sharp pain lasting 30 minutes weekly, and he had headaches weekly with no triggers, weakness, nausea, and changes in vision. Id. The Veteran received a VA cervical spine examination in June 2016 and reported daily headaches that he associated with his constant neck pain. See June 2016 Examination Report. This examination was not concerned with his migraine headaches and the extent of his current symptoms was not explored in the report. The Veteran also submitted a FMLA Form completed in December 2016 to the effect that the Veteran was experiencing incapacitating headaches one to two times per week. In April 2017, the Veteran's headache disability was noted to have characteristic prostrating attacks productive of severe economic inadaptability. See April 2017 Examination. Given the delay in providing an adequate examination, the Board finds his headache disability evaluation of 50 percent is properly assigned from March 18, 2016, when his claim for an increase was received. See Swain v. McDonald, 27 Vet. App. 219 (2015). The preponderance of the evidence does not support a finding that the increase in disability was factually ascertainable within the one year prior to March 18, 2016. The February 2016 medical evidence does not support the existence of incapacitating episodes. Even considering the December 2016 statement regarding incapacitating headaches, it is not retrospective in nature. The record does not indicate when the Veteran's headaches increased in severity to a compensable level during the one year prior to his March 2016 claim. His March 7, 2016 statement regarding his headache disability that preceded his claim for increase notes the Veteran continues to suffer from headaches during the military and over the years and that he was prescribed Succinate 50 mg. However, the medication was originally prescribed on February 7, 2016, the same episode of care in which the Veteran's primary care physician described his headaches as in the left temporal area with a chronic sharp pain lasting 30 minutes weekly, occurring weekly with no triggers, weakness, nausea, and changes in vision. The Board finds that the medication does not establish the presence of incapacitating episodes needed for a compensable rating. Ultimately, there is no evidence that indicate the presence of prostrating attacks or sever economic inadaptability prior to the date of claim for increase. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1). Resolving reasonable doubt in the Veteran's favor, the 50 percent evaluation for headache disability is assigned from the receipt date of the claim for increase, March 18, 2016. 2. Entitlement to an effective date of December 12, 2016 for the award 70 percent for service-connected major depressive disorder is granted. The Veteran filed a timely notice of disagreement for the issues of entitlement to an earlier effective date for the award of a 70 percent evaluation of major depressive disorder, the Veteran's notice of disagreement was received within one year of the rating decision that granted an initial evaluation of 50 percent effective August 21, 2012. Resolving reasonable doubt in the Veteran's favor, a 70 percent evaluation is warranted from the date of the December 2016 statement, December 12, 2016. While the Board previously found the appeal arose from a claim for unemployability filed in January 2017, the Veteran's May 2017 notice of disagreement for a higher initial evaluation for psychiatric disability was timely with regard to the September 2016 decision granting service connection for major depressive disorder and the proper rating decision on appeal is the September 2016 decision. Under Diagnostic Code 9434, the General Rating Formula for Mental Disorders is used for depressive disorder. A 50 percent rating is assigned for 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned 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); inability to establish and maintain effective relationships. Finally, a 100 percent rating is assigned 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; 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. The use of the term 'such as' in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase 'such symptoms as,' followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. Evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9434. When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. In April 2017, the RO assigned a 70 percent evaluation from the date of the claim for a TDIU in January 2017. Analysis The Board finds ultimately the Veteran's depressive disorder worsened during the appellate period and culminated in his loss of employment in January 2017. For the reasons listed below, the Board finds an effective date of December 12, 2016 for the 70 percent evaluation is appropriate based on the symptoms demonstrated and the severity of the Veteran's psychiatric disability. Private treatment records from August 2012 show the Veteran was assessed with normal judgment, orientation, mood, and affect. See August 2012 Medical Record. Private treatment records from April 2012 and December 2013 and show an assessment of work-related stress and the onset of anxiety in December 2013. The Veteran was prescribed Paxil and reported that his symptoms were well-controlled with medication. See December 2013 Medical Record. Psychiatric assessment in October 2014 showed the Veteran reported symptoms of depressed mood, unable to enjoy activities, sleep pattern disturbances, avoidance, loss of interest, fatigue, and decreased libido. See October 2014 Medical Record. The Veteran reported a good marriage and that he was employed gainfully. The Veteran was noted to have serious symptoms and social and occupational impairment. During a February 2016 mental health consultation, the Veteran indicated that he had a loss of interest in things he used to enjoy, such as watching sports and TV. He was stressed at work due to a complaint he submitted, as he stated he was a model employee but was passed over for a promotion. He did, however, have a supportive relationship with his wife. The February 2016 examiner noted that his speech was clear, and his attitude was cooperative and attentive. There were no hallucinations and his judgment was intact. There were no current suicidal or homicidal thoughts, nor a history of suicidal or homicidal attempts. There was also no history of inappropriate behavior. See February 2016 Medical Record. The Veteran received a VA examination in July 2016, and the examiner noted 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. He lived with his wife and held the same job for approximately 9 years. See July 2016 Examination. The Veteran's symptoms included depressed mood, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. He was alert, oriented and cooperative. His mood was depressed and affect blunted. His thoughts were organized, and he was not suicidal or homicidal. As noted above, the Veteran provided a December 2016 statement that he had 1-2 days per week of incapacity due to chronic depression. This statement was signed by a healthcare provider. See December 2016 Statement. The Board also notes an October 24, 2016 document from the same physician that noted the Veteran experienced inability to work due to lumbar spine, leg, migraine, and depression disabilities for a duration of 2 days on average every 2 weeks, but that he was still able to tolerate working as a baggage screener at his own tolerance. See October 2016 Medical Record. The Veteran was examined in April 2017 and the examiner noted the Veteran's symptoms had increased in severity when he lost his job in January 2017. See April 2017 Examination. The Veteran was noted to have deficiencies in most areas, was socially isolated, and had no close friends. The Veteran was noted ot have depressed mood, chronic sleep impairment, difficulty adapting to stressful circumstances, flattened affect, and disturbances in mood and motivation. The Board finds evidence shows that since December 12, 2016, the symptoms have resulted in deficiencies in work, school, family relations, judgment, thinking, or mood, that are the equivalent to the symptoms listed in the criteria for a 70 percent rating, namely, difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. Specifically, the record shows the Veteran's depressive symptoms increased to the point that in January 2017 he lost his employment, as shown by the April 2017 VA examination indicating worsening severity in symptomatology from the prior examination in July 2016. When comparing the severity of his depressive disorder disability at the time of the October 2016 medical record versus the December 2016 record, the physician author indicated greater disability as of the December 2016 timeframe. When considering the Veteran's December 2016 statement that he experienced incapacitating episodes of depression 1-2 days a week, the Board finds this is more closely approximated by the criteria under the 70 percent evaluation showing difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships reduced reliability and productivity. For these reasons, the Board finds that the effect of the symptomatology equates to or more nearly approximate the criteria of a 70 percent rating, that is, occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood from December 12, 2016. Taking into account all the evidence and for the above reasons, the preponderance of the evidence is against a rating higher than 50 percent for PTSD from August 12, 2012 (Continued on the next page) to December 12, 2016, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.