Citation Nr: 21022908 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 19-03 307A DATE: April 19, 2021 ORDER Entitlement to an effective date prior to February 10, 2012 for the grant of service connection for major depressive disorder (MDD) is denied. Entitlement to an evaluation of 70 percent disabling, but no higher, for service-connected major depressive disorder is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability is remanded. FINDINGS OF FACT 1. The first communication from the Veteran that sought service connection for an acquired psychiatric condition was received on February 10, 2012; no submission received prior to that date can be reasonably construed as a claim for benefits. 2. Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that his service-connected MDD disability is manifested by occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date prior to February 10, 2012 have not been met for the award of service connection for MDD. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. 2. The criteria for a rating of 70 percent, but no higher, for MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1977 to February 1981, and from February 1981 to December 1986, and from December 1986 to October 1989. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2016 Decision Review Officer decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Earlier Effective Date 1. Entitlement to an effective date prior to February 10, 2012 for the grant of service connection for major depressive disorder (MDD) The Veteran seeks an earlier effective date prior to February 10, 2012 for the award of service connection for MDD. See December 2016 Notice of Disagreement. Generally, the effective date of an award of a claim is 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. The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) which is received within the appeal period or prior to the appellate decision shall be as though the former decision had not been rendered. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1). In cases where the evidence is received after a final disallowance, the effective date shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160 (d). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160 (e). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). 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), 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. The Veteran makes no specific contentions as to why he is entitled to an earlier effective date for the award of service connection for MDD. A review of the claims file indicates that the Veteran initiated a claim for service connection for an acquired psychiatric disorder on February 10, 2012. An October 2016 rating decision subsequently granted service connection for major depressive disorder. Under regulations in effect prior to March 24, 2015, any communication or action indicating an intent to apply for benefits could be considered an informal claim as long as it identified the benefit sought. 38 C.F.R. § 3.155(a). Here, the Board notes that there are no communications from the Veteran, either formal or informal, that were received by the VA prior to February 10, 2012 that evinced a belief that the Veteran had an acquired psychiatric disorder related to service. In sum, VA did not receive the Veteran's application for service connection for an acquired psychiatric disorder until February 10, 2012, many years post-service separation. Based on that submission, an October 2016 rating decision granted service connection for a major depressive disorder, effective February 10, 2012. A review of the record reflects that no claim, formal or informal, expressing a belief to entitlement to service connection for an acquired psychiatric disorder was received by the VA prior to February 10, 2012. Although the Board has considered the Veteran's claim, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. While the disability itself may have manifested earlier, this does not decide the effective date in this case; the date of claim does. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). On these facts, because the earliest effective date legally possible has been assigned, the appeal for an earlier effective date as to the issue of service connection for MDD is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). 2. Entitlement to an evaluation in excess of 50 percent for service-connected major depressive disorder Service connection was granted for major depressive disorder at the 50 percent disabling level. The Veteran appealed the initial rating, contending that he is entitled to an increased rating in excess of 50 percent for his service-connected MDD disability. See July 2020 Brief in Support of Veteran’s Claim. At the outset, the Board notes that the Veteran has been diagnosed with posttraumatic stress disorder (PTSD) for which he is not service-connected. See November 2019 VA examination report. Accordingly, those symptoms associated with his PTSD, such as hypervigilance, exaggerated startle response, recurrent, involuntary, and intrusive distressing memories, dissociative reactions, avoidance of or efforts to avoid distressing memories/thoughts may not be considered in rating his service-connected MDD; however, the Board will consider those symptoms which overlap the two diagnoses of PTSD and MDD, namely poor concentration, insomnia/sleep disturbances, and persistent negative emotional state. By resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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). A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). 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. 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. 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. VA and private treatment records, the November 2019 VA examination, an August 2015 private medical examination, and the Veteran’s lay statements show that the Veteran’s Major Depressive Disorder was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, chronic sleep impairment, panic attacks that occur weekly or less often, mild memory loss), a 50 percent rating (disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, flattened affect), a 70 percent rating (suicidal ideation, near-continuous depression affecting the ability to function independently, appropriately and effectively, neglect of personal appearance and hygiene, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships), and a 100 percent rating (intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene). The Veteran also had symptoms that are not listed with a specific rating, such as fatigue, persistent feelings of hopelessness/excessive guilt/inappropriate guilt, concentration difficulties. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. To point, the November 2019 VA examiner associated symptoms of peristent feelings of hopelessness/excessive guilt/inappropriate guilt with his MDD diagnosis. Coupled with fatigue, poor concentration, and recurrent suicidal ideation, the Board finds that the Veteran’s aforesaid unlisted symptoms more closely approximates near-continuous depression affecting the Veteran’s ability to function independently, appropriately and effectively. See General Formula (70 percent rating criteria). The Board notes that the Veteran expressed recurrent 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. While the Veteran’s VA treatment records do indicate an isolated suicide attempt, there is not a recurring history of the same, nor is there evidence that the Veteran poses a constant threat to himself or other people. See, e.g., August 2012 VA treatment record (“No evidence of risk for suicide or for harm to others emerged in today's session.”); September 2016 VA treatment record; November 2019 VA examination (indicating that the Veteran denied past, recent, and current suicidal plans). The Board also finds the level of impairment caused by the Veteran’s listed symptoms more closely approximate the level associated with a 70 percent rating. VA treatment records, the November 2019 VA examination, and the August 2015 private medical examination indicate that the Veteran suffers from depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, suicidal ideation, mild memory loss, flattened affect, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. During the November 2019 VA examination, the Veteran reported persistence of intrusive memories, nightmares, avoidance behaviors, negative alterations in cognition and mood, marked alterations in arousal and reactivity in reference to traumatic wartime experience. Here, the Board finds of import that many of these same symptoms were medically associated with the Veteran’s PTSD diagnosis for which he is not service-connected. During the August 2015 private medical examination, the Veteran reported feeling anxious and depressed while endorsing symptomatology of depression, as the private medical examiner indicated that the Veteran was vague with response, suspicious, and seemed rather paranoid as well as cautious when speaking. Following a thorough review of the record, the Board finds that the Veteran's MDD disability warrants an initial 70 percent disability rating, as the recurrence of suicidal thoughts and near-continuous depression supports said rating for the entire period on appeal. See Bankhead v. Shulkin, 29 Vet. App. 10, 19-21; see November 2019 VA examination. As to a higher 100 percent disability rating, the preponderance of the evidence weighs against a finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. To point, nearly all of the Veteran’s MDD symptomatology is encompassed in the criteria contemplated by the lesser disability ratings under the General Formula. Additionally, as indicated by the August 2015 private medical examiner, the Veteran’s speech flow was normal, thought content was appropriate, organization of thought was goal directed, with no report of overt hallucinations; findings of memory loss to the extent of forgetting names of close relatives, own occupation, or own name were also not made, nor other symptoms on par with the level of severity contemplated by those symptoms. Thus, the evidence of record weighs against the assignment of a total disability rating as contemplated by the 100 percent criteria under the General Formula. REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability is remanded. The issue of entitlement to TDIU has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, the August 2015 medical examiner indicated that the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his MDD. As the AOJ has not yet considered whether the Veteran is entitled to a TDIU, the issue is remanded for initial adjudication, and to satisfy the duty to assist the Veteran in developing his claim, as directed below. The matters are REMANDED for the following action: Send the Veteran a letter satisfying the duty to notify and duty to assist provisions with respect to his claim of entitlement to TDIU, as well as a VA Form 21-8940 and request that he complete and submit it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, 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.