Citation Nr: 21012862 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 18-39 096 DATE: March 5, 2021 ORDER Entitlement to an effective date of December 5, 2011, and not earlier, for an increased rating of 50 percent for major depressive disorder disability is granted. Entitlement to an evaluation in excess of 50 percent prior to June 4, 2012 and in excess of 70 percent from February 5, 2019 for major depressive disorder disability is denied. Entitlement to an evaluation of 70 percent, and not higher, from June 4, 2012 to February 4, 2019, for major depressive disorder disability is granted. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On December 5, 2011, VA received the Veteran’s informal claim for an increased rating for his major depressive disorder disability; his claim was not acknowledged and remained pending. 2. Prior to June 4, 2012, the Veteran’s major depressive disorder disability has been manifested by no more than occupational and social impairment with reduced reliability and productivity, with symptoms of flattened affect and disturbances in mood and motivation. 3. From June 4, 2012, the Veteran’s major depressive disorder disability closely approximated occupational and social impairment with deficiencies in most areas, such as work, social relations, and mood. 4. At no point during the pendency of the appeal has the Veteran’s major depressive disorder more closely approximated total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of December 5, 2011, and not earlier, for an increased rating of 50 percent for major depressive disorder disability have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to an evaluation in excess of 50 prior June 4, 2012, and in excess of 70 percent from February 5, 2019 for major depressive disorder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for entitlement to an evaluation of 70 percent, and not higher, from June 4, 2012 to February 4, 2019 for major depressive disorder disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 2000 to March 2001, from November 2003 to March 2004, and from December 2005 to July 2006, and he had additional service in the Air National Guard. 1. Entitlement to an effective date for award of increased rating for major depressive disorder disability The Veteran seeks the assignment of an effective date prior to October 20, 2015 for increased rating of 50 percent for his major depressive disorder. He contends that he filed a claim in June 2012 for increased rating for his major depressive disorder disability, but it was not acknowledged by VA. See February 2017 notice of disagreement and August 2018 substantive appeal. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless specifically provided, the effective date will be assigned based the facts as found. 38 C.F.R. § 3.400 (a). The effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). A June 2010 rating decision granted service connection for major depressive disorder disability and assigned a 30 disability rating. Although the Veteran filed an August 2010 notice of disagreement to the service connection claims that were adjudicated in the June 2010 rating decision, he did not indicate a desire appeal the initial assigned rating for his major depressive disorder disability. In addition, no new and material evidence pertaining to his major depressive disorder disability was received within a year of the June 2010 rating decision. The Board acknowledges that the record reflects that the Veteran received VA treatment for his major depressive disorder within a year of the June 2010 rating decision. However, those VA treatment records only demonstrate a continuity of treatment, and are essentially cumulative in nature, and do not constitute new and material evidence. As such, the June 2010 rating decision is final. See 38 U.S.C. § 7105 (c) (2002); 38 C.F.R. § 3.104, 3.156, 20.302, 20.1103 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). On December 5, 2011, the Veteran submitted a statement in which he expressed his desire to file notice of disagreement to his initial assigned 30 percent rating for his major depressive disorder disability. The RO did not respond to the Veteran’s December 2011 statement. On June 26, 2012, the Veteran submitted a VA 21-526b, Veteran Supplemental Claim, on which he checked the box that he sought an increased evaluation for a service-connected disability, but he did not identify a service-connected disability. On October 20, 2015, VA received the Veteran’s VA 21-526b, Veteran Supplemental Claim, on which he stated his desire for an increased rating for his major depression disorder disability. Thereafter, in a March 2016 rating decision, the RO increased the assigned rating to 50 percent for the Veteran’s major depressive disorder disability, effective from October 20, 2015 (identified as the date that his claim was received). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). Here, the Board finds that the evidence shows that the Veteran did in fact file an informal increased rating claim prior to October 20, 2015. The Veteran’s December 2011 statement was untimely and is not a valid notice of disagreement as to the June 2010 rating decision. However, the Board finds that his December 2011 statement can be liberally construed as a claim for an increased rating for major depressive disorder disability. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. On the other hand, if the formal claim formal claim is received after one year of its receipt, then the effective date will be the date of VA’s receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103 (b); 38 C.F.R. § 3.155). However, the effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. See, e.g., Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992). The evidence shows the Veteran’s informal claim was received on December 5, 2011; however, the RO did not adjudicate the claim and did not send the Veteran a formal application form. As the RO did not act on the Veteran’s informal claim, his December 2011 increased rating claim has remained pending. As such, the issue that remains in dispute is when it is factually ascertainable that the Veteran’s major depressive disorder disability more nearly approximated the criteria for a 50 percent rating. See 38 C.F.R. § 3.400 (o)(2). The Veteran’s major depressive disorder disability is currently rated under Diagnostic Code 9434. Under the General Formula for Mental Disorders (General Formula), a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130. The Board finds the evidence is sufficient to show that the Veteran’s major depressive disorder disability more nearly approximated the criteria for a 50 percent rating from the December 5, 2011 claim for increase rating. In this regard, a December 2011 VA treatment records show the Veteran’s complained of depression, anxiety, sleep disturbances, irritability, recurrent thoughts about his combat service, being easily startled, avoidant behavior, staying at home, and poor motivation. On mental status examination, his treating VA provider observed that the Veteran had crying spells, he had depressed mood and congruent affect, and his insight and judgement were fair. His symptomatology was considered serious. The Board finds that the Veteran’s major depressive disorder symptomatology is consistent with the criteria with a 50 percent rating under 38 C.F.R. § 4.130 as of December 5, 2011, the date of receipt of his informal claim. As such, entitlement to effective date of December 5, 2011 for award of increased rating of 50 percent for major depressive disorder disability is granted. Increased Rating Disability evaluations are determined by comparing the Veteran’s symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities and the criteria for specific ratings. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. §§ 3.102, 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In a claim for a higher initial disability rating after an initial award of service connection, all evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. 2. Entitlement to an evaluation in excess of 50 prior to February 7, 2019, and thereafter, in excess of 70 percent for major depressive disorder disability The Veteran’s major depressive disorder disability is currently assigned a 50 percent evaluation prior to February 7, 2019, and thereafter, assigned a 70 percent evaluation pursuant to Diagnostic Code 9434. See 38 C.F.R. § 4.130. The Veteran contends that he suffers from severe psychiatric symptoms which warrant a total disability rating throughout pendency of appeal. See August 2018 substantive appeal. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under the General Formula, a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 38 C.F.R. § 4.130. 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; or memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. For the period prior to June 4, 2012, the Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. VA and private treatment records, and the Veteran’s lay statements show that the Veteran’s major depressive disorder disability was manifested by symptoms associated with a 50 percent rating, such as depressed mood, irritability, flattened affect, and disturbances in motivation and mood. He also had symptoms that are not listed with a specific rating, such as crying spells, feelings of hopelessness, isolation, and easily startled. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Further, the Veteran’s symptoms of crying spells, feelings of hopelessness and worthlessness, are similar to impaired thinking and disturbances of motivation and mood, which are contemplated by the assigned 50 percent rating. The Board also finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating prior to June 4, 2012. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA treatment records indicate that the Veteran had depressed mood and congruent affect, he had crying spells during clinical interview, but his psychomotor, speech, thought content, thought process, and memory were considered normal, and he had appropriate behavior, and he was oriented and alert on clinical evaluation. His insight and judgement were evaluated as fair. He did not express any suicidal or homicidal thoughts or ideations, and there was no evidence of delusions or hallucinations. Although the Veteran complained of being isolated at home, he reported that he maintained a fair to good relationship with his wife and one of his adult children. Accordingly, the Board finds that the Veteran’s major depressive disorder symptomatology prior to June 4, 2012 is consistent with the criteria associated with a 50 percent rating under Diagnostic Code 9434, and do not support the assignment of a rating in excess of 50 percent prior to June 4, 2012. See 38 C.F.R. § 4.130. As of a June 4, 2012 VA treatment record, the Board finds that the evidence of record first demonstrates that the Veteran’s major depressive disorder disability more closely approximated the level of impairment associated with a 70 percent rating. See 38 C.F.R. § 4.130. In this regard, the June 4, 2012 VA treatment records show that the Veteran’s disability more closely approximates occupational and social impairment with deficiencies in the areas of work, social relationships, and mood. This VA treatment records shows that Veteran informed his treating VA medical provider that severe stress at work and he had taken sick leave. He also reported being isolated from others, having poor trust of other, and being guarded with others. His VA medical providers observed that he had poor social functioning. See June 4, 2012 VA treatment record. Since June 2012, the evidence of record demonstrates that the Veteran’s disability caused him impairment with deficiency in the area of work. The Veteran has consistently asserted that he stopped working his position as military police because it evoked recurrent thoughts about his combat service, which caused him increased anxiety and severe stress. Records received from the Social Security Administration (SSA) show that the Veteran last worked as a military police officer in March 2012, and he stopped working, in part, due to severe stress associated with his work that exacerbated his mental health disability. Moreover, the Veteran’s treating VA medical providers noted that he is unable to sustain a gainful occupation and was retired from his work, in part, due to his mental health disability. See January 2015, October 2015, August 2018, and November 2018 VA treatment records. Since June 4, 2012, the evidence also demonstrates that the Veteran’s major depressive disorder disability resulted in deficiencies in social relationships and mood. VA treatment records also show the Veteran consistently complained of depressed mood, crying spells, social isolation, disturbances in mood and motivation, and feelings of hopelessness and worthlessness, and he later began to express passive suicidal ideations. See July 2013 and January 2019 VA treatment records. The record shows that Veteran has participated in partial day hospitalization treatment programs in 2017, 2018, and 2019, but his major depressive disorder symptomatology has persisted. The Board acknowledges that during the pendency of the appeal no VA examiner found that the Veteran’s major depressive disorder disability was manifested by more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See March 2016 and February 2019 VA psychiatric examination reports. However, the Veteran’s treating VA and private medical providers have characterized his symptomatology as severe. See June 2013 private medical statement; July 2013, January 2015, and March 2016 VA treatment record. Also, an October 2015 VA treatment records shows that diagnostic test results reflected the Veteran had severe anxiety and depression, and January 2019 diagnostic test results reflected he had moderately-severe depression symptomatology. The Board finds that as of June 4, 2012, the evidence of record first demonstrates that the Veteran’s major depressive disorder disability more closely approximates occupational and social impairment with deficiencies in the areas of work, social relationships, and mood, and which is consistent with assigment of a 70 percent criteria under Diagnostic Code 9434. See 38 C.F.R. § 4.130. At no point during the pendency of the appeal has the Veteran’s major depressive disorder disability more closely approximated the level of impairment required for a disability rating of 100 percent. See 38 C.F.R. § 4.130. While the Veteran reported one or two symptoms indicative of a 100 percent rating, such are not shown to be of a nature, frequency, severity of a duration so as to more closely approximate total occupational and social impairment. VA treatment records show that the Veteran has reported occasional auditory and visual hallucinations; however, there is no evidence of persistent delusions or hallucinations. Rather, on mental status examination, the Veteran’s treating VA medical providers regularly marked no evidence of perceptual disturbances, and both the March 2016 and February 2019 VA examiner did not find evidence of delusions or hallucinations during clinical evaluations. Moreover, VA medical records have consistently shown that the Veteran has been alert and oriented, his speech was considered within normal limits, his thought processes were intact, and there was no evidence of serious memory loss. Although his treating VA and private providers have considered his symptomatology to be severe in nature, no medical provider found that the Veteran suffered total occupational and social impairment due to his service-connected major depressive disorder disability. While the Veteran reported social isolation, the record reflects that his attempts to maintain relationships with his wife and adult children (albeit strained at times), he has continued to seek medical treatment on regular basis for both his mental and physical disorders. VA treatment records also show he reportedly attends church and support group meetings. See February 2012 and October 2018 VA treatment records; and August 2012 SSA benefits application. Therefore, while the Veteran’s psychiatric disability significantly impacts his ability to establish and maintain relationships, it is not shown that such disability results in total social impairment. See 38 C.F.R. § 4.130. Evidence of record shows that the Veteran has reported no interest in participating in activities of daily living, and his wife has to remind him to attend to personal hygiene. See November 2012 and October 2015 VA treatment records, and August 2012 SSA benefits application. However, no medical provider has concluded that the Veteran’s disability renders him unable engage in normal routine behavior and self-care. Rather, his treating VA medical providers consistently noted his appearance as well-groomed and good hygiene. Neither VA examiner found that the Veteran’s disability resulted in neglect of personal appearance. Overall, the Board does not consider the severity, frequency, and duration of the Veteran’s neglected appearance to be the result of intermittent inability to perform activities of daily living, which is indicative of a 100 percent. See 38 C.F.R. § 4.130, Diagnostic Code 9434. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the March 2016 and February 2019 VA examinations. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran’s treating VA medical providers have found that he is unable to maintain gainful employment due to his service-connected disability, he was not totally socially impaired. Again, VA medical records show that the Veteran has maintained a relationship with his wife and adult children (although strained at times), and he has regularly attended medical sessions for his mental health and physical disorders, and he has also reported that he attends church and support group meetings. The Board finds that for period prior to June 4, 2012, the Veteran’s major depressive disorder disability was manifested by psychiatric symptomatology that more closely approximates occupational and social impairment with impairment with reduced reliability and productivity, and as of June 4, 2012, his symptomatology more closely approximates social and occupational impairment with deficiencies in most areas. Consequently, an initial rating in excess of 50 percent prior to June 4, 2012 for the Veteran’s major depressive disorder disability is not warranted; however, a rating of 70 percent, and not higher, is warranted from June 4, 2012. At no point during the pendency of the appeal, the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating, and a rating in excess of 70 percent from June 4, 2012 is not warranted. REASONS FOR REMAND 1. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. The Veteran seeks entitlement to a TDIU as result of his service-connected major depressive disorder disability. On his April 2019 VA Form 21-8940, application for increased compensation based on unemployability, the Veteran stated that he last worked in December 2011 as military police officer in National Guard, and he was no longer able to work because of his major depressive disorder disability. However, records from SSA show that the Veteran reported that he last worked as military police officer on March 26, 2012. In addition, the Veteran has submitted evidence of SSA earned income in 2012 that appears to exceed the poverty threshold; however, he contends that he did not work in 2012 and that income reflects his termination pay from employer. The Board finds that it is unclear from the record when the Veteran last held substantially gainfully employed. The record does not reflect that an attempt to obtain his employment information from his last employer. On remand, the RO contact the Veteran’s former employer noted on his VA Form 21-8940 to obtain information about the conditions of the Veteran’s employment. The matters are REMANDED for the following action: Send VA Form 21-4192, Request for Employer Information in Connection with Claim for Disability Benefits, to the Veteran’s last identified employer. Elicit any information or authorization required from the Veteran. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray, 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.