Citation Nr: 21067243 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-15 894 DATE: November 3, 2021 ORDER An effective date of August 6, 2014 , but not earlier, for the assignment of an increased 100 percent disability rating for general anxiety disorder with major depressive disorder (psychiatric disability) is granted. FINDINGS OF FACT 1. After the Veteran filed a notice of disagreement to the April 2011 rating decision that granted a 30 percent disability for his psychiatric disability, between April 2013 and August 2015, the Veteran's representative submitted several, numerous requests about the status of his appeal, which were unanswered, without any notice or receipt of the June 2013 Statement of the Case for two years. 2. While VA received the Veteran's increased rating claim for his psychiatric disability on September 10, 2009; the earliest date that it is factually ascertainable that a worsening or increase in the Veteran's psychiatric disability occurred is August 6, 2014. CONCLUSION OF LAW The criteria for an earlier, effective date of August 6, 2014, for an increased, 100 percent disability rating for a psychiatric disability have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.157 (2014) (removed effective March 24, 2015); 38 C.F.R. §§ 3.1(p); 3.102, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1968 to September 1970. The procedural history of this matter is particularly critical to the issues in this claim. It is as follows. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2011 and April 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office in New York, New York. In June 2011, the Veteran filed a notice of disagreement to the April 2011 rating decision, which denied entitlement to an increased rating, in excess of 30 percent, for the service-connected psychiatric disability. Although the Regional Office issued a statement of the case in June 2013, the Veteran nor his representative received a copy. Sometime in June 2015, the Veteran and his representative discovered that the Regional Office had already issued a statement of the case, two years earlier, and immediately, requested that the Regional Office provide the Veteran's representative (Veteran) with a copy the statement of the case. In November 2015, the Veteran filed a VA Form 9: Appeal to the Board (Board appeal form) and attempted to perfect his appeal of the April 2011 rating decision. However, the appeal remained pending, with no indication or notice from the Regional Office as to whether this belated filing was accepted or rejected. Approximately a week and-a-half later, the Veteran also filed a second fully developed claim for an increased rating for this same service-connected psychiatric disability. In an April 2016 rating decision, the Regional Office increased the service-connected disability rating for a psychiatric disability to 100 percent disabling. However, it established the effective date of this rating increase as November 18, 2015. After the Veteran filed a May 2017 notice of disagreement to this April 2016 rating decision, the Regional Office issued a new statement of the case in February 2018. In March 2018, the Veteran timely filed a Board appeal form and perfected this appeal, which was also certified to the Board in March 2018. In June 2021, the Veteran testified at a June 2021 virtual hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Earlier Effective Date for an Increased Rating Claim The Veteran asserts that the effective date of his increased, 100 percent disability rating for his service-connected psychiatric disability should be earlier than November 18, 2015. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after disallowance, or a claim for increase will be 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. Unless otherwise provided, the effective date of compensation or the increased rating will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). VA must look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or her representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). The essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Effective March 24, 2015, however, VA amended its regulations regarding claims. The new amendment requires claims to be filed on standard forms, eliminating constructive receipt of claims, and eliminating informal claims. See 79 Fed. Reg. 5766 (Sept. 25, 2014). Thus, this new regulation eliminated the provisions of 38 C.F.R. § 3.157, which allowed for VA reports of hospitalization or examination, which could be regarded as informal claims. Id. In this case, however, the Veteran initially filed his claim for an increased rating for a psychiatric disability prior to March 24, 2015. Thus, that September 2009 claim for an increased rating for his psychiatric disability is not subject to this amendment. By asserting that the effective date of granting the increased, 100 percent disability rating for his psychiatric disability should be earlier than November 18, 2015, the Veteran reasons that after he filed a timely notice of disagreement to the April 2011 rating decision the Regional Office failed to serve him with a copy of a June 2013 statement of the case, despite several requests from his representative that VA apprise him of the status of his June 2011 notice of disagreement. Thus, given these assertions, the Board shall first determine the correct date VA received his claim for an increased rating for the psychiatric disability, giving consideration to the above- and under-mentioned, applicable VA regulations. At his June 2021 virtual hearing, the Veteran explained that his former representative unsuccessfully attempted to obtain information from VA on several occasions, via certified mail and fax, about the status of the appeal, but the Regional Office never responded to any of his correspondences. As the evidence in the claims file corroborates these competent lay statements, the Board finds that the Veteran's lay statements about the procedural history and developments of his claim are credible. Based on a detailed, comprehensive review of the procedural history of this claim, the Veteran filed an informal claim for an increased rating for his psychiatric disability in September 2009. In an April 2011 rating decision, the Regional Office denied the claim for an increased rating, in excess of 30 percent disabling. In June 2011, the Veteran filed a notice of disagreement to the April 2011 rating decision. Although the Regional Office issued a statement of the case in June 2013, apparently, however, neither the Veteran nor his representative received a copy of this statement of the case. After the Veteran filed his notice of disagreement, however, the Veteran's representative sent several correspondences (at least six correspondences) to the Regional Office, between April 2013 and August 2015, requesting for an update or a status of the Veteran's June 2011 notice of disagreement. However, the Regional Office did not respond to any of the Veteran's requests, nor did it provide the Veteran or his representative with any updates about the status of his claim. It was not until sometime around June 2015 when the Veteran and his representative discovered that the Regional Office had already issued a statement of the case in June 2013. In a June 2015 third party correspondence to the Regional Office, the Veteran's representative requested for a copy of the statement of the case. However, it was not until after what the Veteran's representative described as a "sixth request", see August 2015 Correspondence, when the Regional Office likely provided the Veteran with a copy of the statement of the case. The claims file does not make it clear as to whether, and if so, precisely when the Regional Office provided the Veteran and/or his representative with a copy of the June 2013 statement of the case. Nonetheless, the Veteran filed a VA Form 9: Appeal to the Board (Form 9 Board Appeal) in November 2015. In conjunction to filing this November 2015 Board appeal, the Veteran's representative also submitted a letter to the Regional Office, requesting that VA accept this late filing, in response to the June 2013 statement of the case. He explained that he never received a copy of the statement of the case, and that he had just been informed about the issuance of this June 2013 correspondence. However, the Regional Office never responded or apprised the Veteran as to whether his belated filing was accepted or rejected. Nonetheless, the Veteran concomitantly filed another increased rating claim for his psychiatric disability in November 2015. After the April 2016 rating decision increased the rating disability to 100 percent, and established an effective date of November 18, 2015, the Veteran filed another notice of disagreement; and by timely filing his March 2018 Board appeal form and perfecting this appeal, the Veteran, again, explained that his representative never received the original, June 2013 statement of the case, and therefore, could not appeal that decision in a timely fashion. The crux of the Veteran's above-mentioned assertions infers that the effective date of his increased, 100 percent disability rating for his psychiatric disability should be based on the date when VA received his initial, September 2009 claim for an increased rating, and not the date when VA received the subsequent, November 2015 claim for the same, psychiatric disability. Throughout the entire course of this appeal, the Veteran and/or his representative consistently maintained that they were not aware, nor did they receive a copy of the June 2013 statement of the case until two years later, well after the filing deadline for the Veteran to perfect his appeal. Thus, as the Veteran was not afforded with the requisite procedural due process to enable him to fairly and timely respond to the June 2013 statement of the case, the Board finds that the Veteran has shown good cause for failing to timely file his Board appeal form, in response to the June 2013 statement of the case, for purposes of perfecting his appeal. For this reason, the timeliness requirement for filing the Board appeal form is waived. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (holding that the issue of timely filing a substantive appeal is not jurisdictional, and that VA may waive any issue of timeliness, either explicitly or implicitly). Pertinently, this means that the April 2011 rating decision that denied the increased rating claim for a psychiatric disability has been pending on appeal since the June 2011 date when the Veteran filed his notice of disagreement to the April 2011 rating decision. See AB v. Brown, 6 Vet. App. 35 (1993). In this regard, the Board reiterates and emphasizes that this April 2011 rating decision is based on the Veteran's initial claim for an increased rating for his psychiatric disability, which VA received in September 2009. Therefore, the Board finds that for purposes of this earlier effective date claim, the correct date when VA received the Veteran's claim for an increased rating for a psychiatric disability is September 10, 2009, and not on the November 18, 2015 date when VA received the subsequent claim for the same disability (while the initial September 10, 2009 claim was still pending on appeal). Accordingly, the Board shall now determine the effective date of this increased, 100 percent disability rating. Under 38 C.F.R. § 3.400 (o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. See also 38 U.S.C. § 5110 (a),(b)(2); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). The Court has held that 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper at 126. Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Harper, 10 Vet. App at 126. The criteria for evaluating mental disorders, including the Veteran's general anxiety disorder with major depressive disorder, are found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130. For a worsening or an increase in the disability, and more specifically in this case, an increased rating higher than 30 percent disabling, an increased, 50 percent rating disability is warranted where there is an 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly in establishing and maintaining effective work and social relationships. Id. An increased, 70 percent disability rating is warranted where there is 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 inability to establish and maintain effective relationships. Id. The maximum increased, 100 percent disability 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; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. These above-mentioned symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 44 (2002). Overall, in evaluating a mental disorder, consideration must be given to the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. See 38 C.F.R. § 4.126(a). In a February 2016 VA examination report, a VA examiner remarked that the Veteran reported having symptoms that significantly worsened since his immediate prior VA examination in May 2010. Therefore, the above-mentioned regulation, 38 C.F.R. § 3.400 (o) (1), is applicable, as the evidence clearly shows that the increase (or worsening) in the psychiatric disability occurred after the September 10, 2009 date when the Veteran filed this claim. Historically, the medical evidence indicates that at the time the Veteran underwent an evaluation for a psychiatric disability in December 2009, he reported that he had a "pretty good" relationship with his then-girlfriend; he had "lots of friends"; and that he did volunteer community work with his children. Further, this VA examination report notes that the Veteran was able to maintain all basic activities of living. The VA examiner found that the Veteran met the criteria for depressive disorder (not otherwise specified), and that there was no evidence that he met the DSM-4 criteria for a second mental diagnosis. Further, the VA examiner remarked that the Veteran reported having a depressed mood, but at the same time, he was generally functioning pretty well; he had some meaningful interpersonal relationships and meaningful leisure time activities, such as, for example, volunteering two full days a week, visiting family and friends, and traveling with his live-in girlfriend. This VA examiner additionally remarked that there was no evidence of disorder of speech or communication. In the subsequent, May 2010 VA examination report, a VA examiner adopted findings from the December 2009 VA examination report, and additionally, explained that in a June 1999 rating decision, the Veteran was granted a 30 percent disability rating for generalized anxiety disorder, based on a June 1999 VA examination report, in which at the time, the Veteran reported "worrying a lot", experiencing panic attacks, and feeling depressed. The VA examiner further explained that ten years later, at his December 2009 VA examination, the Veteran reported having depressive symptoms, although he specifically denied experiencing anxiety. By stark contrast, the most recent, February 2016 VA examination report, which served as the basis for the 100 percent disability rating for the Veteran's psychiatric disability reflects that the Veteran's level of occupational and social impairment, with regards to his psychiatric disability, is best summarized as a total occupational and social impairment. The VA examiner noted that the Veteran reported that he has had conflicted relationships within his family; he has difficulty tolerating social contact with others; he has no close friends; and he frequently feels disconnected from his wife. He further reported that he is estranged from one of his daughters, and he is deeply disturbed by this; he wants friends, but he does not feel comfortable pursing friendships; his wife often complains about him being irritable and anxious, as well as depressed. The VA examiner documented a substantial, additional amount of symptoms that he found were applicable to the Veteran's psychiatric disability. Specifically, these symptoms include, depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; speech intermittently illogical, obscure, or irrelevant; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; persistent delusions or hallucinations; neglect of personal appearances and hygiene; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place. However, in finding that the Veteran's psychiatric symptoms worsened significantly since the May 2010 VA examination report, this February 2016 VA examination report is silent about the specific or approximate date or time frame when the Veteran's psychiatric disability symptoms worsened. As the Veteran did not undergo any additional comprehensive examinations for his psychiatric disability between May 2010 and February 2016, the Board has considered and evaluated all pertinent treatment records from a period prior to the November 18, 2015 effective date of his rating increase, to determine whether it is factually ascertainable, and if so, whether and approximately when the Veteran's psychiatric symptoms worsened prior to this date. Based on a review of these medical treatment records, the medical evidence suggests that the Veteran's psychiatric disability worsened in 2014. The medical evidence suggests that in 2013, the Veteran's psychiatric disability was stable. A June 2013 physician note indicated that there was "no change in [the Veteran's] mental status. In 2013, the Veteran did not report having any significant psychiatric symptoms. For example, an August 2013 psychology note, which indicates that the Veteran was undergoing treatment for anxiety, among other impairments, also noted that his mood was dysphoric with congruent affect, he appeared to be well groomed and casually dressed, the Veteran denied having any suicidal and homicidal ideation, there was no evidence of psychosis, and no difficulties with attention, concentration, or memory were exhibited during his interview. Additionally, a December 2013 psychology note indicates that his mood was euthymic (similar to his previous session), and among other observations, there was no evidence of suicidal/homicidal ideation or increased risk factors for suicidality/homicidally. From a comprehensive review of the Veteran's treatment records from 2014, however, a gradual progression and worsening of his psychiatric symptoms is apparent. On the one hand, the Veteran continued to consistently deny having any episodes of suicidal or homicidal ideation, and treatment records from 2014 do not show that the Veteran manifested some of the more severe psychiatric symptoms or manifestations that the February 2016 VA examiner identified. On the other hand, some treatment records from the later part of 2014 were cumulative and consistent with other psychiatric symptoms noted in the February 2016 VA examination report. For example, in early 2014, numerous treatment records indicated that the Veteran's mood was either mildly dysphoric, mildly anxious, depressed, or euthymic. See e.g. January 2014 Psychology Note; see also February 2014 Psychology Note; see too, April 2014 Psychology Note; see too, May 2014 Psychology Note; see too June 2014 Psychology Note. For the first time, however, in July 2014, a treatment record described the Veteran's mood as "irritable", and thereafter, subsequent, additional treatment records consistently described the Veteran's mood as "irritable." See e.g. July 2014 Psychology Note; see also August 2014 Psychology Note; see too September 2014 Psychology Note. More specifically, an August 6, 2014 psychology note is most particularly suggestive of an increase or worsening of the Veteran's psychiatric symptoms. In addition to noting that the Veteran had an irritable mood, this treatment record noted indicated that the Veteran reported having challenges in relationships. Although prior treatment indicated that the Veteran often had problems in his marriage, this is the earliest evidence that reflects a break down in relationships that are not just limited to his spouse. By September 2015, the Veteran reported that he had 3 close friends. To the contrary, however, the Veteran's previously reported, at his December 2009 VA examination, that he had some meaningful interpersonal relationships. Thus, this is suggestive of a worsening social impairment. Additionally, the Veteran's apparent, worsening social impairment is consistent with his February 2016 report of conflicted relationships within his family; difficulty tolerating social contact with others; and the February 2016 VA examiner's finding that one of the symptoms that are applicable to the Veteran's psychiatric disability, includes difficulty with establishing and maintaining effective work and social relationships. More so, after August 6, 2014, the medical evidence reflects additional and/or more severe, cumulative psychiatric symptoms. For example, similarly and consistent with the February 2016 VA examiner's finding that the Veteran manifests symptoms of impaired impulse control, an August 18, 2014 psychology note reflected, for the first time, that the Veteran reported that he was unsure of what was holding him back from addressing compulsive behaviors in his treatment. Thereafter, additional treatment records documented similar manifestations. See e.g. August 20, 2014 Psychology Note (reporting that the Veteran has some difficulty with addressing his own compulsive behaviors); see also September 2014 Psychology Note. (Continued on the next page) The Board acknowledges that these medical treatment records alone do not provide sufficient details as to whether the severity of the Veteran's psychiatric disability is tantamount to an increased, 100 percent disability rating, prior to November 18, 2015. At the same time, however, the Board acknowledges that the Veteran was not afforded with a comprehensive examination, for purposes of assessing the severity of his psychiatric disability, for almost six years. Thus, by resolving all reasonable doubt in the Veteran's favor, the Board finds that the earliest date it is factually ascertainable that an increased, worsening of the Veteran's psychiatric disability, without regard to degree or magnitude (i.e. without regard to whether the worsening of the disability was particularly equivalent to an increased, 100 percent disability rating), is on August 6, 2014. In other words, this is the earliest possible date that makes it apparent that the psychiatric disability reflected additional, cumulative, worsening symptoms, based on frequency, severity, and duration, which are also consistent with some of the symptoms that the February 2016 VA examiner attributed to his psychiatric disability. As noted above, whereas the date the increase or worsening of a disability occurred is the date entitlement arose, this serves as the effective date of the assignment of an increased rating, if the date entitlement arose is after the date VA received the claim for an increased rating. See 38 C.F.R. § 3.400(o)(1). Thus, as the August 6, 2014 date, when entitlement to an increase arose, is a later date than the date VA received the Veteran's September 10, 2009 increased rating claim for his psychiatric disability, entitlement to an effective date, earlier than November 18, 2015, is warranted. More specifically, entitlement to an August 6, 2014 earlier effective date for the increased, 100 percent rating for the psychiatric disability is granted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.