Citation Nr: A21017237 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 210604-164287 DATE: October 25, 2021 ORDER For the period prior to September 26, 2013, an initial 10 percent, but no higher, disability rating for acquired psychiatric disability is granted. For the period from September 26, 2013, a 50 percent, but no higher, disability rating for acquired psychiatric disability is granted. Entitlement to a finding of total disability based on individual unemployability (TDIU) based on service-connected disabilities is granted. An effective date earlier than September 8, 2011, for the award of service connection and compensation for an acquired psychiatric disability is denied. FINDINGS OF FACT 1. For the period prior to September 26, 2013, the Veteran's acquired psychiatric disability has been manifested by no worse than mild or transient symptoms of depression and anxiety, or by symptoms controllable with continuous medications; occupational and social impairment due to such symptoms on par with the level contemplated at the 30 percent level are not manifested. 2. For the period from September 26, 2013, the Veteran's acquired psychiatric disability has been manifested by no worse than occupational and social impairment with reduced reliability and productivity due to such symptoms as daily depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, social withdrawal, and difficulty in establishing and maintaining effective work and social relationships; occupational and social impairment due to such symptoms on par with the level contemplated at the 70 percent level are not manifested. 3. Throughout the rating period, the Veteran's service-connected disabilities are shown to be of such a nature or severity to prevent him from obtaining or retaining substantially gainful employment. 4. There was no pending claim prior to September 8, 2011, pursuant to which service connection and compensation for an acquired psychiatric disability could have been awarded. CONCLUSIONS OF LAW 1. For the rating period prior to September 26, 2013, the criteria for a 10 percent, but no higher, disability rating for the Veteran's acquired psychiatric disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9400. 2. For the rating period from September 26, 2013, the criteria for a 50 percent, but no higher, disability rating for the Veteran's acquired psychiatric disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9400. 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.7, 4.15, 4.16. 4. The criteria for an effective date earlier than September 8, 2011, for service connection and compensation for an acquired psychiatric disability are not met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1964 to August 1968. He appealed these matters from a November 2020 rating decision by the agency of original jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). This decision implemented a November 2020 Board of Veterans' Appeals (Board) decision granting service connection for an acquired psychiatric disorder secondary to service-connected prostate cancer residuals. The Veteran submitted a notice of disagreement (NOD) and elected the evidence submission docket. The Board only may consider the evidence of record at the time of the November 2020 decision on appeal, as well as any evidence submitted by the Veteran or his representative with the NOD or within 90 days of receipt of the NOD. 38 C.F.R. § 20.303. Remand is not permitted, except for certain pre-decisional errors. 38 C.F.R. § 20.802. The Board is bound by favorable findings unless such are rebutted by clear and unmistakable evidence. 38 C.F.R. § 3.104. Rating Acquired Psychiatric Disability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 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 a moment of examination. 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 based on social impairment. 38 C.F.R. § 4.126. Under the general rating formula for the evaluation of mental disorders, 38 C.F.R. § 4.130 including Diagnostic Code 9400, generalized anxiety disorder is rated as follows: No interference with occupational and social functioning: where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication0 percent. 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 continuous medication10 percent. 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)30 percent. 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 relationships50 percent. 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 relationships70 percent. 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 name100 percent. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran's condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the symptoms do need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). Mental status evaluation in December 2011 reveals that the Veteran was alert, oriented, and attentive. His manner was cooperative, and his speech had normal rate and rhythm. His mood was dysthymic and anxious. The Axis I diagnosis was depression and anxiety; medications were prescribed. The Veteran was to begin individual therapy. A February 2012 VA examination diagnosed an adjustment disorder with mixed anxiety and depression. The Veteran at the time reported mild transient symptoms, to include feeling down and feeling angry, and worried about finances and health. Symptoms were mild in severity; and symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. Also, in February 2012, the Veteran reported that service-connected residuals of prostate cancer had worsened his quality life. On September 26, 2013, VA received an examination report in which the physician diagnosed an Axis I mood disorder due to medical condition, with major depressive and anxious features. Axis III medical diagnoses included residuals of prostate cancer and vertigo. The physician described the Veteran's occupational and social impairment as having deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. To date, service connection has not been established for vertigo. The September 2013 examination report also revealed that the Veteran began VA mental health treatment three years ago; he did not take psychotropic medication, despite it being prescribed. There was no history of psychiatric hospitalizations. Current symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, spatial disorientation, and intermittent inability to perform activities of daily living. VA records, dated in October 2017, show that the Veteran was treated in the Emergency Room with complaint of lightheadedness when standing. Physical examination at the time revealed an appropriate affect; cranial nerves were grossly intact. There were no focal deficits. The Veteran was alert and oriented times three. VA records show a history of anxiety and a history of depression in October 2018. Screening was negative for depression at the time. A September 2019 VA examination report revealed no diagnosis of a mental disorder. The examiner mistakenly did not consider the Veteran's adjustment disorder as a service-connected disability. The Veteran also denied any mental health treatment or medication. The examiner noted the Veteran's medical records include diagnoses of anxiety and depression in 2011. Currently, the Veteran appeared fully oriented; his mood appeared pleasant, and his affect was congruent. A VA (contract) examiner in April 2020 noted the Veteran was diagnosed with adjustment disorder with mixed anxiety and depressed mood (ICD-Code F43.23). The Veteran interacted in a polite, pleasant manner. His speech was spontaneous, normal, and easily understood. He described his typical mood as "quiet and peaceful." There were no signs of psychosis or unusual behavior. In May 2021, an acquaintance of the Veteran, for over forty years, reported the Veteran's condition had worsened over the years. The Veteran suffered increased anxiety and mood swings. The Veteran told the acquaintance of problems with memory and concentration, and of being overwhelmed by stress. The Veteran avoided crowds; he basically isolated himself at home for nearly ten years or more. In June 2021, the Veteran reported experiencing a panic attack recently and tightness in his chest. He also reported mood swings. He experienced a lot of sad days and would not leave the house. He reported working as a server at a private club, but over time he had difficulty getting along with certain co-workers. He felt drained, worn out, and could no longer tolerate unfair treatment. The Veteran left the job in 2010. In this case, the Board finds that the overall severity, frequency, and duration of the Veteran's symptoms are on par with the level of severity contemplated by a 10 percent, but no higher, disability rating throughout the rating period prior to September 26, 2013. His acquired psychiatric disability required continuous medications, although the Veteran did not take them. Examiners generally described the Veteran's symptoms of depression and anxiety as both mild and transient. However, there is no showing of decreases in work efficiency or intermittent periods of inability to perform occupational tasks prior to September 26, 2013, due to symptoms such as depression and anxiety. Given the longstanding evidence of such symptoms, along with prescribed medications for treatment, an initial 10 percent, but no higher, disability rating is warranted under Diagnostic Code 9400 for acquired psychiatric disability prior to September 26, 2013. As of September 26, 2013, further occupational and social impairment due to symptoms such as depression and anxiety has been demonstrated. The examination report received on September 26, 2013, noted disturbances of motivation and mood, as well as difficulty in establishing and maintaining effective work and social relationships. No examiner found signs of psychosis or unusual behavior. The Board finds that the overall severity, frequency, and duration of the Veteran's symptoms are on par with the level of severity contemplated by a 50 percent, but no higher, disability rating throughout the rating period from September 26, 2013. Reduced reliability and productivity due to chronic sleep impairment and anxiety is demonstrated. The Veteran's symptoms have demonstrated a lack of motivation and worsening anxiety from September 26, 2013, to include difficulty in establishing and maintaining effective work and social relationships. He often avoided crowds and stayed home. However, there is no compelling indication of symptoms such as suicidal ideation, obsessional rituals, speech intermittently illogical or obscure or irrelevant, or near-continuous panic or depression affecting the ability to function independently. None of the Veteran's actions throughout the rating period from September 26, 2013, suggests such severity of symptoms. Although he is often sad, violence is not reported. Thought processes are intact and normal. Given evidence of reduced productivity and social impairment, a 50 percent, but no higher, disability rating is warranted under Diagnostic Code 9400 for acquired psychiatric disability from September 26, 2013. Hence, staged ratings are warranted. Hart, 21 Vet. App. at 509-510. TDIU Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Marginal employment is not considered substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16 (a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16 (a). A finding of entitlement to TDIU is dependent upon consideration of the impact of each of the Veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as his work history, education, and vocational training. 38 C.F.R. §§ 4.16. Age is not a factor. 38 C.F.R. § 4.19. Throughout the appeal period, the Veteran met the basic schedular eligibility criteria for TDIU; based on the above grants, he had a combined 60 percent rating from September 8, 2011. The conditions, all related to service-connected prostate cancer, count as a single disability for TDIU purposes under 38 C.F.R. § 4.16(a). Service connection is in effect for voiding dysfunction, rated as 40 percent disabling; for acquired psychiatric disability, now rated as 10 percent disabling prior to September 26, 2013, and as 50 percent disabling thereafter; for rectal telangiectasias, rated as 10 percent disabling prior to June 19, 2017, and as 30 percent disabling thereafter; and for erectile dysfunction, rated as 0 percent (noncompensable) disabling. In June 2021, the Veteran reported that he had worked 40 hours weekly as an administrator from August 2003 to April 2008; and that he had worked 20 hours weekly as a server from August 2005 to May 2010. He reportedly did not leave his last job due to disability. Nor did he then expect to receive disability retirement benefits or workers compensation benefits. The Veteran had completed four years of college; he had no other education or training. During the September 2013 examination, the Veteran reported working for AT&T for 34 years and retiring in 2008. He reportedly worked part-time as a server in 2010, and he stopped working due to medical and emotional problemsnamely, residuals of prostate cancer, vertigo, anxiety, and depression. There were no psychiatric hospitalizations. Throughout the period on appeal, the Veteran has had a voiding dysfunction and bowel disorder which he states required him to be close to a restroom at all times. This was stressful and impaired his physical activity and range; he has had embarrassing accidents. He then additionally had increasing difficulty dealing with people. His feelings of paranoia and persecution, given as the reasons he left his part-time job in a club, impacted his occupational function. Friends and family have reported that his mood swings and concern over his personal hygiene restrict his flexibility and availability to work. Take together, the Veteran's service-connected conditions unreasonably interfere with his ability to secure and follow substantially gainful employment. He is physically limited by bowel and bladder dysfunctions, and his psychiatric condition impairs his ability to perform more sedentary, service-oriented jobs. Entitlement to TDIU is warranted. Effective Date of Service Connection The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400 (b). The effective date of service connection based on a reopened claim is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. See 38 C.F.R. § 3.1 (p). The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply only to claims filed on or after March 24, 2015. The Veteran contends that he is entitled to an effective date earlier than September 8, 2011, for the award of service connection and compensation for an acquired psychiatric disability. On January 11, 2006, the Veteran filed a claim for service connection for residuals of prostate cancer. In a November 2006 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for a voiding dysfunction and for erectile dysfunction, as well as awarded special monthly compensation. On September 8, 2011, the Veteran filed supplemental claims for VA benefits. At the time he requested an increased rating for residuals of prostate cancer, and requested service connection for post-traumatic stress disorder (PTSD). VA received an examination report in September 2013, showing a diagnosis of mood disorder due to medical condition with major depressive and anxious features; and a nexus relating the condition to residuals of prostate cancer and vertigo. Service connection was ultimately established for an acquired psychiatric disability. In a November 2020 rating decision, a decision review officer assigned an effective date of September 8, 2011, for the award of service connection and compensation for an acquired psychiatric disability. The Veteran appealed for an earlier effective date. Significantly, in this case, there is no pending claim prior to September 8, 2011, pursuant to which benefits could be granted. The Veteran's earlier claim for service connection had been finally resolved, and he had not appealed the determination. Since the claim for service connection for an acquired psychiatric disability was received in 2011i.e., more than one year following separation from service, as a matter of law, the effective date can be no earlier than the date of receipt of the claim. 38 C.F.R. § 3.400 (b). Accordingly, the proper effective date can be no earlier than the date of receipt of the claim for service connectionthat is, September 8, 2011. Here, the date of claim controls for effective date. The same result is reached under the criteria for a claim to reopen, 38 C.F.R. § 3.400 (r). Moreover, an award of compensation cannot precede the effective date of the grant of service connection. Reasonable doubt does not arise, and the claim for an earlier effective date is denied. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mary C. Suffoletta 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.