Citation Nr: 21015983 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-12 353A DATE: March 18, 2021 ORDER Entitlement to an effective date earlier than April 24, 2014, for the award of a 100 percent disability rating for major depressive disorder is denied. FINDING OF FACT 1. The Veteran filed an informal claim for an increased rating for the service-connected psychiatric disorder on April 24, 2014. There is no unadjudicated claim for an increased rating for the service-connected major depressive disorder prior to the April 24, 2014 informal claim. 2. The Veteran’s major depressive disorder, chronic, severe, and panic attacks was not manifested by total occupational and social impairment within the one-year period prior to April 25, 2014. CONCLUSION OF LAW The criteria for an earlier effective date for the award of a 100 percent disability rating for major depressive disorder, chronic, severe, and panic attacks, prior to April 25, 2014, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the Navy from May 1991 to April 1998. This matter is on appeal of an August 2014 rating decision that awarded the Veteran a 100 percent disability rating for major depressive disorder, chronic, severe, and panic attacks (psychiatric disorder) effective April 25, 2014, the date of the Veteran’s filing for an increased rating claim. Prior to that time, the Veteran was in receipt of a 70 percent disability rating for his psychiatric disorder from May 2, 2008. The Veteran testified at a Board of Veterans’ Appeals (Board) video hearing before the undersigned Veterans Law Judge in June 2019. Unfortunately, due to audio malfunctions, a transcript of the hearing was not made available. In November 2020, a letter was sent to the Veteran, advising him of this issue and informing him of his right to request another Board hearing. The letter stated that if no response was received within 30 days, the Board would assume the Veteran did not desire another hearing and would proceed accordingly. No response was received and a brief provided by the Veteran’s representative in March 2021 stated that the case is ready for review by the Board. The Veteran’s representative contends that VA documented a “flurry of calls” from the Veteran beginning on June 21, 2013, and continuing through April 25, 2014, with the alleged purpose of obtaining an increased evaluation for the Veteran’s psychiatric disorder. While acknowledging that the alleged purpose of these calls cannot be proven definitively due to a lack of transcription, the representative stated that the volume of calls discussing similar information is indicative of the increased severity of the Veteran’s psychiatric disorder during that time frame. Accordingly, the representative asserts the benefit of the doubt should be afforded to the Veteran and the effective date of the Veteran 100 percent disability rating should be the initial documented contact from the Veteran, June 21, 2013. At the June 2019 hearing, the Veteran alleged that his condition worsened in 2013 and that his date of entitlement to a 100 percent rating should be in April 2013. The Veteran has alleged a range of psychiatric symptoms, including depression, anxiety, paranoia, nightmares, sleep disturbances, difficulty managing stress, and auditory hallucinations. Effective Dates The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). In a claim for increase, when evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation, the effective date of the award 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 that date. 38 U.S.C. § 5110(b)(3); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. 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. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). In this instance, the Veteran’s increased rating claim was initiated informally by calling the local VA regional office on April 25, 2014, which later became the effective date of the award of a 100 percent disability rating, as documented in a VA Form 27-0821, Report of General Information. As an initial matter, the Board acknowledges the contention of the Veteran’s representative, as noted above, that the Veteran filed an informal claim earlier than April 25, 2014 in a “flurry of calls” dating back to June 21, 2013. The Board finds allegation argument is not supported by the contemporaneous records. As noted above, an informal claim requires communication indicating an intent to apply for the specific benefits sought. The record includes Reports of General Information relating to seven, different calls received from the Veteran between June 2013 and April 2014. Although transcriptions of these calls do not exist, these reports each include a brief statement of information requested and given by the Veteran. These reports are generally sufficient to document the intent of the Veteran’s call and specifically documented the Veteran’s intent to file increased rating claims relating to specific and separate disabilities on multiple occasions prior to April 25, 2014. For example, on three calls made in June 2013, the Veteran stated his intent to file increased rating claims for his service-connected migraines and hiatal hernia, and also to file a service connection claim for a right eye disability. The Veteran provided general dates and locations of his past medical treatment. Multiple calls in March and early April 2014 also provide reports of treatment, along with requests for VA to obtain his medical record and statements that he would be submitting additional evidence. Accordingly, the Board finds that the preponderance of the evidence is against a finding that there was an informal claim for an increased rating for the Veteran’s psychiatric disorder received prior to April 25, 2014. None of these Reports of General Information mention a psychiatric disorder until the notation of the Veteran’s intent to file an increased rating claim for “PTSD and CHRONIC DEPRESSION” on April 25, 2014. Reports from prior calls demonstrate the Veteran’s ability to properly convey his intent to file claims for increased ratings and service connection, as well as VA’s ability to properly document the Veteran’s intent. For example, at the time of the third call in June 2013, the VA employee wrote, “Vet would like to add to the current claim a service[-]connected disability for a right eye condition.” This shows that the Veteran was aware that his two prior calls that month did not include this particular claim, and he took the time to call VA to add this claim for compensation benefits to be considered. He did not include a statement indicating an intent to file a claim for an increased rating for the service-connected psychiatric disorder until April 25, 2014, which Report of General Information does not indicate that the Veteran believed a prior call had included that claim, as the VA employee documented, “The Veteran called to file a compensation claim for the following conditions: PTSD and CHRONIC DEPRESSION.” For the above reasons, the Board finds the preponderance of the evidence is against a finding that the Veteran showed an intent to file an increased rating claim for the service-connected psychiatric disorder prior to April 25, 2014. The Board cannot confer such intent when it is not documented in the evidence of record, and the Reports of General Information provide documentation as to what specific claims the Veteran was filing in 2013, which included increased ratings for migraines and hiatal hernia and service connection for a right eye disability, but not include a claim for an increased rating for the service-connected psychiatric disorder until the Veteran made it clear he was seeking an increased rating for that disability on April 25, 2014. Accordingly, the Board finds that the April 25, 2014 filing date of the Veteran’s informal claim for increased rating is the correct date of claim. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. The Rating Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provide the following ratings for psychiatric disabilities: Under the formula, a 70 percent 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9434. The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vasquez-Claudio v. Shinseki, 713 F3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas," i.e., "the regulation . . . requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, DC 9434. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the Veteran’s claim for an effective date earlier than April 25, 2014 for the award of a 100 percent disability rating for the Veteran’s psychiatric disorder. The reasons follow. As discussed above, prior to April 25, 2014, the Veteran was in receipt of a 70 percent disability rating for his psychiatric disorder from May 2, 2008. Therefore, in order to receive an earlier effective date for his 100 percent disability rating, the evidence must demonstrate a factually ascertainable increase in the severity of the Veteran’s psychiatric disorder, to most closely approximate the criteria for a 100 percent disability rating, within one year prior to the April 25, 2014 filing date of the Veteran’s informal claim. The Veteran’s representative contends that the volume of calls placed by the Veteran to VA relating to various claims from June 2013 to April 2014 is indicative of the increased severity of the Veteran’s condition during this time period. However, the preponderance of the evidence is against a finding that the Veteran’s psychiatric disorder was manifested by total social and occupational impairment within one year prior to April 25, 2014. For example, the record shows that the Veteran was enrolled in courses at Monroe College in New York City, working towards a Bachelor of Science degree in Information Technology throughout the relevant period. Emails from the Veteran in April 2013 show that the Veteran was requesting that VA provide him with funding for a new computer to complete his projects and homework, as he reported that his old computer recently died. The Veteran’s communication was coherent and polite. Treatment notes in July 2013 documented that the Veteran spends lots of time studying. Later that month, the Veteran reported increased depressive symptoms, but denied active suicidal ideation. He was also noted to have an upcoming facial surgery. He requested a letter from his doctor requesting that his school postpone his final exams. On follow-up three weeks later, the Veteran reported that he was feeling much less depressed and that he eventually took his final exams. He submitted an enrollment certification in August 2013 documenting his continued enrollment. The Veteran signed a VA employment plan in March 2014 with a stated goal of acquiring employment in the field of information technology. Resume materials submitted in 2014 shows that the Veteran endorsed having excellent communication skills and that he was seeking an internship in the IT field. The Veteran’s academic coursework and job-seeking activities are evidence against him having total occupational and social impairment prior to April 25, 2014, and shows that the Veteran believed that he was capable of employment and appropriate social interaction. The Veteran generally required only routine, periodic treatment with medication management throughout the relevant period, with no inpatient hospitalizations. The Veteran was seen for medication management in June 2013 and was described as moderately depressed and anxious. On mental status examination, during this treatment and throughout the relevant period, findings routinely recorded the Veteran to be depressed and anxious and that he reported “hearing footsteps.” However, the Veteran was otherwise found to be fully alert and oriented with no visual hallucinations, delusions or suicidal ideation. He generally exhibited a full and appropriate affect with intact memory and has been noted to be independent in his activities of daily living. He has also been described as pleasant during treatment. The Veteran called the VA crisis help line in March 2014, reporting multiple stressors, including financial issues, school, and increased depressive symptoms. He later indicated that the call was preceded by news that he would require additional ophthalmic surgeries for facial injuries. The Veteran reported that he had been downplaying his symptoms to his doctor and had not reported all of his stressors. On follow-up, the Veteran acknowledged his acute stressors and stated that he felt much better. He denied any current or recent suicidal ideation. Treatment records indicate the Veteran to have a history of passive suicidal ideation, but he has routinely denied active suicidal ideation and generally denied acute symptoms on suicide risk assessments, including psychic pain or anxiety, panic symptoms, hopelessness, insomnia, obsessionality, recent intoxications, or hallucinations. Exacerbations of the Veteran’s condition have coincided with a culmination of multiple situational life stressors but have been brief in duration without the need for intensive treatment and without compromising the Veteran’s continued independence and activity levels. The Veteran’s treating psychiatrist, Dr. J.K., submitted a statement dated April 17, 2014 stating that the Veteran was “totally incapacitated for the foreseeable future” due to symptoms of recurrent depression, intermittent suicidal ideation, social withdrawal and isolation, chronic flashbacks, nightmares, and heightened startle response. Despite this assessment, Dr. J.K. did not provide specific examples of the Veteran’s limitations to support the conclusion that the Veteran is totally incapacitated. Such a finding is not supported by the Veteran’s routine treatment records, including treatment from Dr. J.K., or the Veteran’s own reports of his activity levels. Disability ratings are an issue reserved to the adjudicator, based on a totality of the evidence as it relates to the Veteran’s overall functioning, and not dependent on the assessment of any one examiner or treating source. The Veteran’s functioning in the year prior to April 25, 2014 does not demonstrate total social and occupational impairment. The preponderance of the evidence is against a finding that the Veteran demonstrated the types of symptoms that would be indicative of a 100 percent schedular rating, which includes 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. For example, the Veteran was enrolled in college courses during the relevant period and was seeking academic and occupational opportunities, describing his own communication skills as excellent on his resume. He was noted to be independent in his activities of daily living. He was routinely found to be fully alert and oriented and to have intact memory. He demonstrated the ability to interact appropriately and coherently with others and generally denied hallucinations and acute symptoms. Within days of his call to the crisis line in March 2014, the Veteran reported he was planning to get married (which he did in August 2014), which is evidence of his ability to establish relationships. It appears that the Veteran’s primary symptoms of depression, anxiety, passive suicidal ideation, auditory hallucinations, paranoia, and social withdrawal, nightmares, and difficulty managing stress more closely approximate the level of impairment encompassed by the Veteran’s 70 percent disability rating, which specifically considers such factors as suicidal ideation, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Accordingly, the weight of the evidence is against a finding that within the one-year period of when the Veteran submitted his claim for increase on April 25, 2014, his symptoms rose to the level of a 100 percent schedular rating for the service-connected psychiatric disorder. For all the reasons discussed herein, the preponderance of the evidence is against the award of an effective date earlier than April 25, 2014 for the award of a 100 percent rating for the Veteran’s psychiatric disorder. Therefore, the benefit of the doubt doctrine is not for application and the claim for an earlier effective date is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.