Citation Nr: 21024746 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-25 604 DATE: April 26, 2021 ORDER Entitlement to an effective date earlier than November 15, 2012, for the award of service connection for mood disorder is denied. Entitlement to an initial disability rating of 70 percent for mood disorder is granted; subject to the rules and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for right eye disability is remanded. Entitlement to a disability rating in excess of 30 percent for left eye sub-retinal hemorrhage is remanded. FINDINGS OF FACT 1. An unappealed June 2010 rating decision denied service connection for a psychiatric disability, to include obsessive compulsive disorder, stress disorder, and anxiety disorder. 2. Following the final rating decision of June 2010, the Veteran did not file a claim to reopen his claim for service connection for a psychiatric disability, to include mood disorder, until November 2012, which was received by VA on November 15, 2012. 3. Throughout the period on appeal, the severity, frequency, and duration of the Veteran’s mood disorder symptoms most closely approximate occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 15, 2012, for the award of service connection for mood disorder are not met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.400 (2019). 2. The criteria for an initial rating of 70 percent for mood disorder are met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.1-4.3, 4.7, 4.126, 4.130, Diagnostic Code 9326. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1985 to October 2004. These matters come before the Board of Veterans’ Appeals (Board) on appeal from December 2013, January 2016, and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018 correspondence, the Veteran indicated that he wished to withdraw his request for a videoconference hearing before the Board. Accordingly, his Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2019). Earlier Effective Date The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation. Otherwise, the effective date shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b) (2012); 38 C.F.R. § 3.400(b)(2) (2019). Entitlement to an effective date earlier than November 15, 2012, for the award of service connection for mood disorder The Veteran asserts that he is entitled to an earlier effective date for the award of service connection for mood disorder. Service connection for a psychiatric disability, to include obsessive-compulsive disorder, stress disorder, and anxiety disorder, was first denied in a June 2010 rating decision. The Veteran did not appeal the decision and became final. The Veteran’s claim to reopen his claim for service connection for a psychiatric disability, to include mood disorder, was received by VA on November 15, 2012. Thereafter, a May 2017 rating decision granted service connection for mood disorder with an effective date of November 15, 2012, the date VA received the Veteran’s claim to reopen his previously denied claim. Upon review of the relevant evidence, the Board finds that an effective date earlier than November 15, 2012, for the award of service connection for mood disorder is not warranted. Following the final rating decision of June 2010, the Board’s review of the record reflects that the Veteran’s next claim to reopen his claim for service connection for a psychiatric disability, to include mood disorder, was received by VA on November 15, 2012. Prior to this date, there is no evidence after the final June 2010 rating decision of a claim, either formal or informal, seeking to reopen a claim for service connection for a psychiatric disability. As the June 2010 rating decision is final, the effective date for service connection was appropriately assigned as of the date the Veteran’s claim to reopen was received on November 15, 2012. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). In sum, the presently assigned effective date of November 15, 2012 is correct and there is no basis for an award of service connection for mood disorder prior to that date. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The claim of entitlement to an effective date earlier than November 15, 2012, for the award of service connection for mood disorder must be denied. Higher Initial Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings 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 (2019). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial disability rating in excess of 50 percent for mood disorder The Veteran asserts that his service-connected mood disorder warrants a higher rating. The issue in this appeal is whether the Veteran’s associated symptoms cause the level of impairment required for a disability rating of 70 percent or higher.  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 (2019).  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).   The Veteran’s mood disorder is currently rated as 50 percent disabling under Diagnostic Code 9326. 38 C.F.R. § 4.130 (2019).  Under the General Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted for 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. 38 C.F.R. § 4.130.  A 100 percent rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130.  Upon review of the relevant evidence, the Board concludes that, throughout the period on appeal, the Veteran’s symptoms most closely approximated the symptoms associated with a 70 percent rating, and result in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating.  Post-service VA and private treatment records and the October 2013 VA examination show that the Veteran’s mood disorder is manifested by symptoms associated with a 70 percent rating (near-continuous panic and depression, obsessional rituals, impaired impulse control, and difficulty adapting to stressful circumstances). The Veteran also had symptoms that are not listed with a specific rating, specifically, sleep disturbances. The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptom of sleep disturbances more closely approximate the symptoms contemplated by a 70 percent rating, which correlate to sleep disturbances that are more severe, more frequent, and longer in duration. In May 2019 correspondence, Dr. J. H., a VA psychologist who has treated the Veteran’s psychiatric disability since 2010, states that over the last 10 years, the Veteran has experienced sleep disturbances, to include nightmares and insomnia, which has impacted his life significantly. In sum, the Veteran’s unlisted symptom of sleep disturbances are similar in severity and frequency to those symptoms contemplated by a 70 percent rating.  The Board also finds that the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating.  Throughout the period on appeal, the Veteran experienced occupational and social impairment, with deficiencies in most areas.  VA examinations and post-service VA and private treatment records indicate that the Veteran’s insight and judgment were fair, his thought process and speech were logical and coherent, and that he was oriented to person, place, and time.  However, these medical records also show that the Veteran experiences heavy periods of anxiety and depression, daily panic attacks, obsessional rituals, and excessive anger which causes marked interference with the Veteran’s social interactions and negatively impacts his life on a daily basis. Most notably, Dr. J. H. indicates in her May 2019 correspondence that the Veteran’s psychiatric symptoms are experienced on a daily basis and are severe enough that he will need indefinite treatment with medication, as well as ongoing individual and group therapy. Here, the Board finds that, throughout the period on appeal, the Veteran’s mood disorder symptoms consistently reflect near-continuous panic and depression, obsessional rituals, impaired impulse control, and difficulty adapting to stressful circumstances, which are productive of occupational and social impairment, with deficiencies in most areas, and are contemplated by the 70 percent rating criteria.  The Board has not found that the severity, frequency, and duration of the Veteran’s psychiatric symptoms has risen to the level contemplated by a 100 percent disability rating.  Throughout the Veteran’s post-service treatment records and VA examinations, the Veteran regularly denied intent or a plan involving self-harm or harm to others. Further, the medical evidence or record does not reflect, nor has the Veteran reported, gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, extreme memory loss, or an intermittent inability to perform activities of daily living. While the medical evidence reflects periods of self-isolation and difficulty forming relationships with others, the record also reflects that the Veteran has been married for over 42 years, has a good relationship with his children, and is able to leave the house and perform daily activities. Most notably, over the last few years, he has been able to travel out of the country to visit family and friends. As such, a higher 100 percent rating for the Veteran’s mood disorder is not warranted. In conclusion, the Board finds that, for the period on appeal, the Veteran’s mood disorder symptoms consistently reflect near-continuous panic and depression, obsessional rituals, impaired impulse control, and difficulty in adapting to stressful circumstances, which more nearly approximates a 70 percent rating for occupational and social impairment, with deficiencies in most areas.  As such, an initial disability rating of 70 percent, but no higher, for mood disorder is granted.  REASONS FOR REMAND 1. Entitlement to service connection for right eye disability is remanded. The RO denied service connection for a right eye disability in December 2013 on the basis that the Veteran’s service treatment records are silent for complaints of, a diagnosis of, or treatment for a right eye disability. During the October 2013 VA eye examination, the examiner noted a diagnosis of right eye preoperative cataract. Post-service VA treatment records from August 2019 also confirm a diagnosis of right eye cataract. Moreover, review of the Veteran’s service treatment records show reports of blurry vision in both eyes and symptoms of watery eyes. The Board notes that the Veteran’s service treatment records were associated with his claims file in January 2014, after the October 2013 VA examination. Here, the VA examiner did not have access to those service treatment records at the time of the 2013 VA examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). For this reason, the matter is remanded for a new VA examination. 2. Entitlement to a disability rating in excess of 30 percent for left eye sub-retinal hemorrhage is remanded. The Veteran contends that his service-connected left eye disability warrants a rating higher than 30 percent. However, the Board notes that adjudication of the claim of entitlement to service connection for a right eye disability may impact adjudication of the claim for entitlement to a higher rating for the service-connected left eye disability, as higher ratings are assigned for bilateral visual impairment when both eyes are service-connected. Consequently, these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the claim for a disability rating in excess of 30 percent for left eye sub-retinal hemorrhage must be remanded. The matters are REMANDED for the following action: 1. With any necessary identification of sources and authorization by the Veteran, request all VA and private treatment records for the Veteran not already associated with the file. Copies of any outstanding VA and private treatment records should be added to the Veteran's electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any diagnosed right eye disability, to include right eye cataract. The Veteran’s electronic claims file must be accessible for review by the VA examination in conjunction with the examination. A complete history from the Veteran should be obtained and recorded. All testing deemed necessary by the examiner should be performed and the results reported in detail. A detailed rationale for all opinions should be provided. Following the review of the claims file and examination of the Veteran, the examiner is then requested to respond to the following: Is it at least as likely as not (a 50 percent probability or greater) that any diagnosed right eye disability, to include right eye cataract, had its onset in service or is otherwise directly related to service? In rendering the requested opinion, the examiner should consider the Veteran’s service treatment records, which reflects reports of blurry vision in both eyes and symptoms of watery eyes. 3. After completing all indicated development, the Agency of Original Jurisdiction should readjudicate the Veteran’s claims, to include the intertwined issue of entitlement to a disability rating in excess of 30 percent for left eye sub-retinal hemorrhage. If the benefits sought on appeal remain denied, the Veteran should be furnished with a supplemental statement of the case, given the opportunity to respond, and the case should thereafter be returned to the Board for further appellate review, if warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.