Citation Nr: 21071224 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 19-24 848 DATE: November 30, 2021 ORDER Entitlement to service connection for an acquired psychiatric disability, to include depression, including as secondary to his service-connected disabilities is denied. Entitlement to a compensable disability rating for bilateral macular degeneration is denied. Entitlement to an effective date prior to November 2, 2015 for special monthly compensation (SMC) based on housebound status is denied. Entitlement to an effective date prior to November 2, 2015 for Dependents' Education Assistance (DEA) under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had a diagnosis of an acquired psychiatric disability, to include depression, at any time during or approximate to the pendency of the claim. 2. There is no evidence that supports that the Veteran's bilateral macular degeneration manifests as impaired visual acuity to no worse than 20/50 or worse in either eye, loss of visual fields, diplopia, nor incapacitating episodes (due to his eye disabilities) within the period on appeal. 3. A rating decision issued on April 11, 2016 granted entitlement to service connection for cause of death and assigned an effective date of November 13, 2015 for DEA benefits under 38 U.S.C. Chapter 35 from that date. 4. A rating decision issued on March 2, 2018 granted a total (100 percent) disability rating and assigned an effective date of November 2, 2015; this rating decision also established basic eligibility for DEA benefits under 38 U.S.C. Chapter 35 from that date (11 days prior to the previous decision). 5. Prior to November 2, 2015, the Veteran did not have a single disability rated as 100 percent disabling. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disability, to include depression, due to service or secondary to his service-connected disabilities; are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for a compensable disability rating for bilateral macular degeneration have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.75-4.79, Diagnostic Code 6006, Diagnostic Code 6099. 3. The criteria to establish SMC pursuant to 38 U.S.C. § 1114(s), housebound status, prior to November 2, 2015 have not been met. 38 U.S.C. §§ 1114, 1502, 5107, 5110; 38 C.F.R. § 3.350. 4. The criteria for entitlement to an effective date prior to November 2, 2015 for DEA under 38 U.S.C. Chapter 35 have not been met. 38 U.S.C. §§ 1155, 3501, 3510, 5113; 38 C.F.R. §§ 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 United States Air Force from June 1960 until his honorable retirement in December 1981. See December 1981 Certificate of Release or Discharge from Active Duty (DD-214). During his service, the Veteran was stationed at Kang Nung AAF, Korea from November 22, 1965 through December 13, 1966 as an Admin Clerk. See Service Personnel Records, AF Form 7, Foreign Service and Foreign Service Summary sections. The Veteran died in November 2015, and the Appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from the April 2016 and March 2018 rating decisions by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). In August 2020, the Board remanded the case to the RO for further development. Specifically, in relevant part, the Board directed the RO to ask the Appellant to complete a VA Form 21-4142 for any physician(s) and/or facilities that the Veteran was treated for his bilateral macular degeneration and/or psychiatric disability; and to obtain medical opinions by an appropriate clinician as to the nature and etiology of the Veteran's acquired psychiatric disability. In August 2020, the RO sent the Appellant correspondence requesting private treatment records for the Veteran's bilateral macular degeneration and acquired psychiatric disabilities. Included within the correspondence, the RO provided the Appellant with VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a General Release for Medical Provider Information to the Department of Veterans Affairs (VA), so the RO could obtain the private treatment records on her behalf. The Appellant did not respond to these requests for assistance. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Entitlement to service connection for an acquired psychiatric disability, to include depression, including as secondary to his service-connected disabilities The Appellant asserts that the Veteran's depression was due to his service-connected disabilities. The Board finds that there is not evidence of a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). In accordance with the August 2020 Board remand, the RO obtained a medical opinion from a VA examiner in October 2020. The October 2020 VA examiner opined that the claimed acquired psychiatric disability is less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because the record is silent for a depressive disorder or condition. The examiner noted that the Veteran's November 2015 treatment records references end of life care, including addressing the symptom of depression. However, as the October 2020 VA examiner explained, the record does not contain information that demonstrates that the Veteran met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM5) criteria for depression. See October 2020 VA Psychiatric Posthumous Evaluation. See, e.g., Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020), (holding that VA has expressly limited compensation to disabilities conforming to a DSM diagnosis, and that service connection may not be established for a psychiatric condition under Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) based on symptoms and functional impairment without a DSM diagnosis). This clarification obtained from the October 2020 VA examiner reconciles and corrects the Board's prior finding of a current diagnosis in the underlying August 2020 remand. In the absence of a diagnosed acquired psychiatric disability during the pendency of the claim, service connection cannot be established. See Brammer v. Derwinski, 2 Vet. App. 223 (1992). There is also insufficient evidence of a disability at any point during the claim period or shortly before. See McClain v. Nicholson, 21 Vet. App. 219 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, entitlement to service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. 2. Entitlement to a compensable disability rating for bilateral macular degeneration The Appellant asserts that the Veteran is entitled to a compensable disability rating. Evaluations of defective vision from noncompensable to 100 percent based on organic impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. §§ 4.76(a), 4.79. The examination for visual impairment must be conducted by a licensed optometrist or by a licensed ophthalmologist and the examiner must identify the disease, injury, or any other pathologic found. 38 C.F.R. § 4.76(b). Examination of visual fields or muscle function will be conducted only when there is a medical indication of disease or injury that may be associated with visual field defect or impaired muscle function. Id. Unless medically contraindicated, the fundus must be examined with the Veteran's pupils dilated. Id. Unless otherwise directed, evaluate diseases of the eye under the General Rating Formula for Diseases of the Eye. 38 C.F.R. § 4.79, Diagnostic Codes 6000 through 6009. Impairment of Visual Acuity is rated under Diagnostic Codes 6061 through 6066. Impairment of Visual Fields is rated under Diagnostic Codes 6080 through 6081. Impairment of Muscle Function is rated under Diagnostic Codes 6090 through 6091. As a preliminary matter, the Board finds that a change in the Veteran's assigned Diagnostic Code is warranted. The Board notes that the Court has held that the selection of a particular Diagnostic Code "is a determination that is completely dependent upon the facts of a particular case," and the Board has discretion in determining the appropriate Diagnostic Code. Butts v. Brown, 5 Vet. App. 532, 538 (1993) (applying the more deferential "arbitrary, capricious" standard, rather than de novo review, to the Board's determination of the appropriate Diagnostic Code). The Veteran is currently assigned a noncompensable disability rating under Diagnostic Code 6099 for unlisted disabilities of the eye. Unlisted disabilities requiring rating by analogy are coded with the first two numbers of the schedule provisions most closely related body part and 99. Here, the hyphenated diagnostic code indicates that the Veteran's bilateral macular degeneration disability is currently rated as analogous to diseases of the eye (Diagnostic Code 6099) under the criteria for impairment of central visual acuity] (Diagnostic Code 6066). 38 C.F.R. § 4.79, Diagnostic Code 6099. However, Diagnostic Code 6006 provides for impairments of maculopathy that would be rated under the General Rating Formula for the Eyes. Accordingly, the Veteran is currently being rated for visual impairments. Therefore, the Board finds that a rating under Diagnostic Code 6099 is not the appropriate Diagnostic Code to rate the Veteran's disability. The evidence does show trace macular pigmentation. See March 17, 2014 Central Arkansas VA treatment records; see also May 1982 VA Rating Decision. As such, the Board finds that a rating under Diagnostic Code 6006 for maculopathy is the more appropriate Diagnostic Code. Accordingly, the Board finds that the appropriate Diagnostic Code for the Veteran's disability is Diagnostic Code 6006. The Board further notes that the Veteran's current disability has been rated under Diagnostic Code 6099 for nearly 40 years and is afforded protection under 38 U.S.C. § 1159. However, the Board finds that a change in the Diagnostic Code will not result in a reduction of the current disability rating or severance of service connection. Therefore, the Board finds that a change in the Diagnostic Code does not violate the Veteran's rights under 38 U.S.C. § 1159. The criteria under Diagnostic Codes 6000 through 6009 instructs to evaluate on the basis of either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. 38 C.F.R. § 4.79. This formula is the General Rating Formula for Diseases of the Eye. During the period on appeal, the General Rating Formula for Diseases of the Eye provides the following: Where incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. Where incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. Where incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. Where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note following the General Rating Formula indicates that, for VA purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider. For evaluations of restrictions in visual field(s), the examiner must use either Goldmann kinetic perimetry or automated perimetry using Humphrey Model 750, Octopus Model 101, or later versions of these perimetric devices with simulated kinetic Goldmann testing capability. 38 C.F.R. § 4.77. Determination of the average concentric contraction of the visual field of each eye by measuring the remaining visual field (in degrees) at each of the eight principal meridians 45 degrees apart, adding them, and dividing the sum by eight. 38 C.F.R. § 4.77(b). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of 38 C.F.R. § 4.25. For evaluations of restrictions in muscle functions, the examiner must use a Goldmann perimeter chart or the Tangent Screen method that identifies the four major quadrants (upward, downward, left, and right lateral) and the central field (20 degrees or less). The examiner must document the results of muscle function testing by identifying the quadrant(s) and range(s) of degrees in which diplopia exists. 38 C.F.R. § 4.78(a). 38 C.F.R. § 4.78(b) provides that (1) an evaluation for diplopia will be assigned to only one eye. When a veteran has both diplopia and decreased visual acuity or visual field defect, assign a level of corrected visual acuity for the poorer eye (or the affected eye, if the disability of only one eye is service-connected) that is: one step poorer than it would otherwise warrant if the evaluation for diplopia under diagnostic code 6090 is 20/70 or 20/100; two steps poorer if the evaluation under diagnostic code 6090 is 20/200 or 15/200; or three steps poorer if the evaluation under diagnostic code 6090 is 5/200. This adjusted level of corrected visual acuity, however, must not exceed a level of 5/200. Use the adjusted visual acuity of the poorer eye (or the affected eye, if the disability of one eye is service-connected), and the corrected visual acuity for the better eye (or visual acuity of 20/40 for the other eye, if only one eye is service-connected) to determine the percentage evaluation for visual impairment under diagnostic codes 6065 through 6066. (2) When diplopia extends beyond more than one quadrant or range of degrees, evaluate diplopia based on the quadrant and degree range that provides the highest evaluation. (3) When diplopia exists in two separate areas of the same eye, increase the equivalent visual acuity under diagnostic code 6090 to the next poorer level of visual acuity, not to exceed 5/200. As noted above, the Veteran died shortly after the claim was filed and it was not possible to obtain a VA examination. VA treatment records reflect that the Veteran reported blurry vision and matting of eyes for 3 days on August 19, 2015 and August 20, 2015 with a recommendation to treat as a local infection with erythromycin ointment. There are not further notations within the VA treatment records pertaining to the Veteran's eye disabilities. Therefore, the Board does not have any evidence to support an increased disability rating for the Veteran's bilateral macular degeneration and the claim must be denied. Effective Dates Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on 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. Under 38 U.S.C. § 5110(a), the effective date for awards in a Veteran's disability compensation 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(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2) ...only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim." Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date 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)); or (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)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101 (30); 38 C.F.R. § 3.1 (r). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155. 3. Entitlement to an effective date prior to November 2, 2015 for SMC based on housebound status The Appellant generally asserts that the Veteran would have been entitled to SMC based on housebound status prior to November 2, 2015. In March 2018, the RO awarded the Veteran a total disability rating, effective November 2, 2015. A Veteran may be entitled to SMC for housebound benefits if, in addition to having a single permanent disability rated at 100 percent disabling under the VA schedule for Rating Disabilities, the Veteran either: (1) has an additional disability or disabilities independently ratable at 60 percent or more, separate and distinct from the permanent disability rated as 100 percent disabling and involving different anatomical segments of bodily systems ("statutory" SMC(s)); or (2) is "permanently housebound" by reason of disability or disabilities ("housebound in fact"). This requirement is met when the Veteran is substantially confined to his or her dwelling and the immediate premises or, if institutionalization, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). While the total disability requirement must be met by a single disability, the 60 percent disability requirement may be met by applying the combined rating of the Veteran's remaining disabilities. See Bradley v. Peake, 22 Vet. App. 280 (2008) (noting that combined ratings satisfy the second requirement but not the first). The requirements for SMC based on housebound status prior to November 2, 2015 have not been met in this case. The Veteran did not have a single disability rated at 100 percent prior to November 2, 2015 with others combinable to 60 percent or more so as to meet the criteria for "statutory" SMC(s). As for his eligibility for SMC(s) based on being "housebound in fact", the evidence of record does not show that prior to November 2, 2015 the Veteran was "permanently housebound" by reason of disability or disabilities and substantially confined to his or her dwelling and the immediate premises or, if institutionalization, to the ward or clinical area, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an effective date prior to November 2, 2015 for Dependents' Education Assistance under 38 U.S.C. Chapter 35 The Appellant generally asserts that she is entitled to DEA benefits under 38 U.S.C. Chapter 35 prior to November 2, 2015. 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. 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 is 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 systems 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 an April 2016 rating decision, the VA Regional Office awarded DEA benefits effective November 13, 2015, the date of the Veteran's death. In a later rating decision of March 2018, the appellant was granted a total disability rating (100 percent) for pyloric urosepsis, effective November 2, 2015. In the same decision, the effective date for DEA benefits was amended to November 2, 2015. Since the effective date for DEA benefits is directly related to the March 2018 rating decision finding that the Veteran has a total disability that was permanent in nature, an effective date prior to November 2, 2015, is not warranted, as the effective date of his total disability rating is not changed, nor being appealed. The preponderance of the evidence is against the assignment of an effective date prior to November 2, 2015 for eligibility to DEA benefits under 38 U.S.C. Chapter 35. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Deemer, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.