Citation Nr: 21029842 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 16-49 877 DATE: May 17, 2021 ORDER Entitlement to service connection for a bilateral hearing loss disability is denied. Entitlement to an initial disability rating of 70 percent for the period prior to January 24, 2017, for major depressive disorder is granted. Entitlement to a disability rating in excess of 70 percent for the period from January 24, 2017, for major depressive disorder is denied. Entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea is denied. Entitlement to an effective date earlier than April 16, 2012, for the award of service connection for an acquired psychiatric disorder, to include major depressive disorder, is denied. Entitlement to an effective date earlier than February 26, 2015, for the award of service connection for obstructive sleep apnea is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted from April 16, 2012. FINDINGS OF FACT 1. At no time during the pendency of the claim has the Veteran had bilateral hearing loss that met the threshold level of severity to be considered a disability for VA compensations purposes. 2. For the period prior to January 24, 2017, the Veteran's depressive disorder symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. For the period from January 24, 2017, the Veteran's depressive disorder symptoms did not result in total occupational and social impairment. 4. Throughout the appellate period, the Veteran's obstructive sleep apnea has not been characterized by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires tracheostomy. 5. The Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for an acquired psychiatric disorder, to include major depressive disorder, effective April 16, 2012, the date of his initial claim for service connection for an acquired psychiatric disorder. The Veteran's earliest claim of entitlement to service connection for an acquired psychiatric disorder was received on April 16, 2012. 6. The RO granted service connection for sleep apnea effective February 26, 2015, the date of his initial claim for service connection for sleep apnea. The Veteran's earliest claim of entitlement to service connection for sleep apnea was received on February 26, 2015. 7. Throughout the appeal period, and with the grant of the higher initial rating for the psychiatric disability in this decision, the Veteran had a combined rating of at least 80 percent, with at least one disability rated at 40 percent or more. 8. Throughout the appeal period, the Veteran's service-connected disabilities have prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a bilateral hearing loss disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 2. The criteria for entitlement to a disability rating of 70 percent for the period prior to January 24, 2017 for major depressive disorder have been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 3. The criteria for entitlement to a disability rating in excess of 70 percent for the period from January 24, 2017 for major depressive disorder have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.102, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 4. The criteria for a disability rating in excess of 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6847. 5. The criteria for an effective date prior to April 16, 2012 for the award of service connection for an acquired psychiatric disorder, to include major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 6. The criteria for an effective date prior to February 26, 2015 for the award of service connection for obstructive sleep apnea have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 7. The criteria for entitlement to a TDIU have been met as of April 16, 2012. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.10, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 2000. This matter was previously remanded by the Board of Veterans' Appeals (Board) in February 2019. 1. Entitlement to service connection for a bilateral hearing loss disability The Veteran contends entitlement to service connection for a claimed bilateral hearing loss disability. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service (typically one year); or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that service connection can be granted for a hearing loss where the Veteran can establish a nexus between his current hearing loss and a disability or injury he suffered while he was in military service. Godfrey v. Derwinski, 2 Vet. App. 352, 356 (1992). The Court has also held that VA regulations do not preclude service connection for hearing loss which first met VA's definition of disability after service. Hensley, supra, at 159. With regard to the threshold issue of a current disability, audiometric testing results from a July 2013 examination shows normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the July 2013 audiological exam revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 20 15 15 15 25 LEFT 20 15 20 20 25 Maryland CNC speech recognition testing was 100 percent for both ears. In accordance with the February 2019 Board remand, the Veteran had another examination for his claimed bilateral hearing loss disability in October 2019. The October 2019 audiological examination also showed normal hearing for VA purposes under the provisions of 38 C.F.R. § 3.385. Specifically, the October 2019 audiological exam revealed the following puretone thresholds, in decibels: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 15 25 35 LEFT 20 15 20 30 30 Maryland CNC speech recognition testing was 100 percent for both ears. In comparing the results of the audiological testing to the regulatory criteria set forth in 38 C.F.R. § 3.385, the Board must conclude that the evidence is against a finding that the Veteran currently has a bilateral hearing loss disability as defined for VA compensation purposes. Neither ear has any frequency at 40 decibels or greater, at least three frequencies at 26 decibels or greater, or speech recognition scores less than 94 percent. The Board does not doubt that the Veteran experiences a decreased level of ability to hear; however, it has not reached the level of severity necessary to be deemed a disability for VA compensation purposes. Furthermore, he is not competent to diagnose the disability, as it requires prescribed diagnostic testing in accordance with 38 C.F.R. § 3.385. Without a present disability, there can be no valid claim for service connection as Congress has specifically limited entitlement to service connection to cases where such incidents have resulted in a disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992). For this reason, the Veteran's service connection claim for a bilateral hearing loss disability must be denied. INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. 1. Entitlement to a disability rating in excess of 30 percent for the period prior to January 24, 2017, for major depressive disorder The Veteran's service-connected major depressive disorder is rated as 30 percent disabling from April 16, 2012, and 70 percent disabling from January 24, 2017, under VA's General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. A. Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Evaluations of mental health disorders, such as the Veteran's service-connected disability, are assigned under the provisions of 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. General Rating Formula for Mental Disorders: 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 100 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 70 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 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; difficulty in establishing and maintaining effective work and social relationships 50 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events) 30 Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication 10 A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication 0 The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. B. Discussion The Veteran was granted service connection for his psychiatric disability in a September 2016 rating decision. At that time, a 30 percent rating was established, effective in April 2012. The Veteran appealed the initial rating. During the course of the appeal, the rating was increased to 70 percent, effective in January 2017. In this case, the Board finds that a 70 percent rating is warranted throughout the appeal. The Veteran had an examination for his depression disability in September 2012. The Veteran reported symptoms including depressed mood; anxiety; mild memory loss; disturbances of motivation and mood; and suicidal ideation. The Veteran reported that he has been married four times, and that he has been married to his current wife for 20 years. The Veteran stated that that he gets along fine with others but only has two people he would consider friends. The Veteran denied feeling helpless, hopeless, or worthless. However, the Veteran acknowledged thoughts of suicide without intent, that his energy and motivation were low, and that he does not find much joy in life anymore. The Veteran was alert and oriented times three. His mood was depressed with sullen affect, tearful at times when discussing his physical health. The Veteran's speech was low in volume and slow in cadence. His psychomotor activity appeared slowed. His conversational speech was articulate, and he was able to establish rapport and responded appropriately to all questions asked. The Veteran demonstrated clean and appropriate grooming and hygiene. The Veteran's thought processes were logical, relevant, and goal directed. There was no evidence of a formal thought disorder. The Veteran did not report auditory or visual hallucinations and did not appear to be responding to internal stimuli. The Veteran reported thoughts of suicide by overdose, but without current intent. He did not report homicidal ideation. The Veteran had another examination in July 2013. The Veteran reported symptoms including depressed mood; chronic sleep impairment; and mild memory loss. The Veteran stated that he had one brother and one sister and that he maintained contact with them. The Veteran also stated that his current marriage had lasted 21 years. The Veteran described his current marriage as "okay". Additionally, the Veteran reported that he did not participate in many activities because of his level of pain and disinterest. The Veteran denied any current suicidal or homicidal ideation. In an October 2016 statement, the Veteran's sister reported that the Veteran's mental health had declined. She stated that the Veteran did not like to leave the house. Additionally, she stated that the Veteran's memory had declined, that he had trouble with names and places, and that he frequently repeated stories. In a November 2016 statement, the Veteran's wife stated that the Veteran had struggled with his mental health over the course of their marriage. She stated that they used to have a booth at the flea market, but it did not last long because it was too demanding on him. She further stated that the Veteran talked about life not being worth living because of his pain. Additionally, she stated that if he had a string of bad days, he would not even shower. Furthermore, she reported that he was frequently forgetful, and did not sleep well. She reported that the Veteran had become more withdrawn and his symptoms had gotten progressively worse. The Board concludes that the evidence of record indicates that the Veteran's depressive disorder symptoms more nearly approximated the higher, 70 percent disability rating for the period on appeal prior to January 24, 2017. See 38 C.F.R. § 4.7. The Veteran's symptoms include reports of suicidal ideation, depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and mild memory loss. As a result, the Board finds that the Veteran's described symptoms more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as described by the 70 percent rating criteria for the period on appeal prior to January 24, 2017. However, a rating greater than 70 percent is not appropriate because the evidence of record does not indicate that the Veteran had total occupational and social impairment as contemplated by the 100 percent rating criteria. The Veteran described getting along well with others and having two close friends. Additionally, the Veteran described his marriage as "okay". Furthermore, there is no evidence in the record showing that his service-connected depressive disorder had manifested in those symptoms typically associated with total social and occupational impairment, such as gross impairment in thought processes or communication; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The record also does not support that he has other symptoms on par with the level of severity contemplated by those symptoms. The medical evidence of record consistently notes that the Veteran has been oriented to person, time, and place, casually and appropriately dressed, with intact thought processes. Although the Veteran has persistent anxiety and depression, and at times has had suicidal thoughts, the weight of the evidence shows that, for the period prior to January 24, 2017, his depressive disorder did not cause total occupational and social impairment. In short, for the period prior to January 24, 2017, the Veteran's depressive disorder symptoms cause occupational and social impairment in most areas, as contemplated by the 70 percent rating for the period on appeal. The benefit sought on appeal is granted to 70 percent disabling, but no higher. 2. Entitlement to a disability rating in excess of 70 percent for the period from January 24, 2017 for major depressive disorder Since January 24, 2017, a disability rating in excess of 70 percent is not warranted. The Veteran had an examination for his depression disability in the form of a disability benefits questionnaire (DBQ) in January 2017. The Veteran exhibited symptoms including depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran stated that he has been married to his fourth wife for 20 years. He also stated that he was socially isolated and withdrawn. The Veteran's attention was normal, and his concentration appeared to be variable. The Veteran complained of increased trouble with short term memory. The Veteran denied hallucinations. The Veteran had another examination for his depression disability in July 2019. The Veteran exhibited symptoms including depressed mood, anxiety, suspiciousness, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. The Veteran reported that he had been married for 27 years, and he described the quality of their marriage as "good" but noted that his mood impacted their relationship. The Veteran's wife reported that the Veteran was depressed three to four times per week, a and she must modify her approach to him. The Veteran denied having any issues with his temper but stated that he was reluctant to go out as he was afraid of hurting people. He reported that he and his wife went out occasionally but in general he tried to stay home. The Veteran also reported having one friend with whom he communicated, and he recently joined a car club. The Veteran was casually dressed. His eye contact was good, and he was cooperative. There were no overt symptoms of hallucinations or delusions. His thought process appeared logical. His mood was depressed with flat affect. The Veteran reported daily suicidal ideation but denied intent or plan. His insight and judgment appeared adequate. The Veteran had another examination in January 2020. The Veteran exhibited symptoms including depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; difficulty in understanding complex commands; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and neglect of personal appearance and hygiene. The Veteran reported that he was still married and described the relationship as "good". The Veteran further stated that he met a couple friends at the car club he joined. The Veteran was casually dressed. His eye contact was good, and he was cooperative. There were no overt symptoms of hallucinations or delusions. His thought process appeared logical. He denied suicidal or homicidal ideation. His insight and judgment appeared adequate. As noted above, to warrant the assignment of a higher 100 percent rating, the Veteran's acquired mental condition must manifest in symptoms causing total occupational and social impairment. The Veteran has generally reported having a good relationship with his wife, although she occasionally had to alter her approach with him depending on his mood. He also jointed a car club, where he made friends. There was no evidence in the record showing that his service-connected psychiatric disorder has manifested in those symptoms typically associated with total social and occupational impairment, such as gross impairment in thought processes or communication; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The record also does not support that he has other symptoms on par with the level of severity contemplated by those symptoms. The medical evidence of record consistently notes that the Veteran has been oriented to person, time, and place. He has consistently been described as cooperative. Additionally, the Veteran has not demonstrated symptoms of hallucinations or delusions. Although the Veteran has difficulty with establishing and maintaining relationships, intermittent neglect of personal appearance and hygiene, and suicidal ideation, the weight of the evidence shows that his depression disability does not cause total occupational and social impairment, warranting an increased rating to 100 percent. In short, for the period on appeal from January 24, 2017, the Veteran's major depressive disorder symptoms cause occupational and social impairment in most areas, as contemplated by the 70 percent rating currently assigned. For these reasons, the benefit sought on appeal is denied. 3. Entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea The Veteran is in receipt of a 50 percent disability rating for his service-connected obstructive sleep apnea. He generally contends that a higher rating is warranted. The Veteran's disability has been assigned a disability rating under Diagnostic Code (DC) 6847 of 38 C.F.R. § 4.97. The applicable rating schedule is set forth as follows: 6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed): Chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy 100 Requires use of breathing assistance device such as continuous airway pressure (CPAP) machine 50 Persistent day-time hypersomnolence 30 Asymptomatic but with documented sleep disorder breathing 0 The Veteran had an examination for his sleep apnea in the form of a disability benefits questionnaire (DBQ) in December 2015. The examiner noted that the Veteran required the use of a CPAP machine. The Veteran described unavoidable napping every day at least once or twice a day, and that he frequently "nods off" during the day. Other pertinent findings included persistent daytime hypersomnolence. In a statement received in January 2016, Dr. H.S. stated that the Veteran frequently cannot use his CPAP due to his depressive disorder. The Veteran stated that when his depression was bothering him a great deal, the CPAP made him feel claustrophobic and he could not tolerate it. Dr. H.S. noted that this is a very common problem for patients who have mental problems and also sleep apnea, and that the Veteran's inability to use his CPAP every night greatly aggravated the effects of his sleep apnea and the next day he is very tired and will fall asleep frequently. The Veteran appeared for a VA sleep apnea examination in January 2020. The examiner noted that the Veteran required the use of a CPAP machine. The examiner noted that the Veteran's sleep disorder did not require continuous medication or the use of a breathing assistance device. In consideration of the evidence of record, the Board finds that the weight of the evidence preponderates against entitlement to a rating in excess of 50 percent for obstructive sleep apnea. The evidence of record demonstrates that the Veteran's disability has not involved chronic respiratory failure with carbon dioxide retention or cor pulmonale, nor required a tracheostomy during the period on appeal. Without such evidence, an evaluation in excess of 50 percent cannot be granted. Accordingly, the Board finds that the claim of entitlement to a disability rating in excess of 50 percent for obstructive sleep apnea must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Effective Date Unless specifically provided otherwise in applicable law, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application for said benefits. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Additionally, the effective date for an award of disability compensation based on direct service connection is the day following separation from active service or the date entitlement arose, if claim is received within one year after separation from active duty; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary (i.e., VA Form 21-526). 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a). 4. Entitlement to an effective date earlier than April 16, 2012, for the award of service connection for an acquired psychiatric disorder to include major depressive disorder The Veteran contends that he is entitled to an effective date earlier than April 16, 2012, for the grant of service connection for an acquired psychiatric disorder to include major depressive disorder. The Veteran has not put forth any specific argument as to why he should receive an earlier effective date. The Veteran filed a claim for service connection for anxiety and depression in a VA Form 21-526 received by VA on April 16, 2012. The Veteran's claims file does not contain any earlier informal or formal claim for service connection. The effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). Therefore, the appropriate effective date for service connection for an acquired psychiatric disability, to include major depressive disorder, is April 16, 2012, as established by the RO. 5. Entitlement to an effective date earlier than February 26, 2015, for the award of service connection for obstructive sleep apnea The Veteran contends that he is entitled to an effective date earlier than February 26, 2015, for the grant of service connection for obstructive sleep apnea. The Veteran's representative noted that a sleep study report dated April 26, 2011, reports a diagnosis of obstructive and hypopneic sleep apnea, moderate severity, with recommendation of CPAP. The Veteran filed a claim for service connection for an obstructive sleep apnea disability in a VA Form 21-526 received by VA on February 26, 2015. Prior to February 26, 2015, there is no communication from the Veteran that could be construed as a formal or informal claim for service connection for any sleep apnea disability. There is medical evidence that was of record prior to February 2015 showing a diagnosis of sleep apnea. However, VA's possession of medical evidence showing a diagnosis of and treatment for a sleep apnea condition may not provide a basis for the assignment of an earlier effective date. Medical evidence alone cannot be an informal claim; there must be claimant intent to apply for a benefit. See Brannon v. West, 12 Vet. App. 32 (1998). The date entitlement arose for the disability here is earlier than the date he filed his claim on February 26, 2015. As above, it is not the date of evidence of a disability that sets the effective date. Because the later of these two dates in this case is the date the Veteran filed his claim, there is no legal basis to assign an effective date earlier than that date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400((b)(2)(i). The claim must be denied. 6. Entitlement to a total rating based on individual unemployability (TDIU) The Veteran claims he is entitled to a TDIU, asserting that all of his service-connected disabilities make him unemployable. The Veteran submitted a VA form 21-8940 in November 2019. However, because his disability ratings have been on appeal since April 2012, and a claim for an increased rating includes a claim for TDIU where there are allegations of worsening disability and related unemployability, the Board has jurisdiction of the issue from April 2012. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In his application, the Veteran wrote that his service-connected disabilities prevented him from securing or maintaining a substantially gainful occupation. The Veteran indicated that he last worked in January 2012 as a produce manager at a grocery store. The Veteran wrote that he completed high school but did not have any additional education or training. A. Applicable Law Under the applicable criteria, total disability ratings based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. B. Discussion At the time of the Veteran's claim, in April 2012, service connection was in effect for major depressive disorder, bilateral knee disabilities, tinnitus, and left testicular torsion. His combined rating at that time was 50 percent. During the appeal, service connection was also established for obstructive sleep apnea, effective in February 2015. His combined rating from that time was 80 percent. The subsequent increase in the Veteran's psychiatric rating effective in January 2017 raised the combined rating to 90 percent at that time. Notably, in this decision, the Board grants a 70 percent rating for the service-connected psychiatric disability from April 2012. This brings his combined rating from 50 percent to 80 percent for the initial portion of the appeal period (from April 2012). Therefore, the Veteran has met the schedular requirements for a TDIU throughout the appeal. The Veteran had an examination for his psychiatric disability in September 2012. The Veteran reported that since discharge he worked 10 years as the produce manager at a Piggly Wiggly grocery store. Additionally, the Veteran reported that his medical conditions, including an on-the-job back injury, forced him to quit about two years prior to the examination. The Veteran stated that he would like to work but his physical conditions and medications precluded work. The Veteran reported symptoms including depressed mood, anxiety, mild memory loss, disturbances of motivation and mood, and suicidal ideation. The examiner noted that the Veteran denied feeling helpless, hopeless, or worthless. While his motivation was low, he was articulate, able to establish a rapport and respond appropriately to all questions. His thought processes were logical, relevant, and goal-directed. The Veteran had an examination for his knee disabilities in October 2012. The examiner noted that the Veteran's knee disabilities did not impact his ability to function. The Veteran had another mental health examination in July 2013. The Veteran reported that he worked for 10 years as a produce manager at a supermarket and had to leave, now because of knee and leg issues. The Veteran further reported symptoms including depressed mood, chronic sleep impairment, and mild memory loss. He was noted to have irritability due to pain. In a July 2013 examination for the Veteran's tinnitus, the examiner noted that the Veteran's tinnitus impacted his ability to work, in so far as the Veteran found it to be distracting and bothersome. In a December 2015 DBQ for the Veteran's sleep apnea, Dr. H.S. noted that the Veteran's sleep apnea impacted his ability to work. Specifically, the Veteran described unavoidable napping every day at least one or two times per day, and that he frequently "nods off" during the day. The Veteran had another psychiatric examination in January 2017. The Veteran reported that he took several college courses but did not earn a degree. The Veteran further reported that his last job was a produce manager at a grocery store and that he began receiving Social Security disability benefits in 2012 for his physical disabilities. The examiner noted that the Veteran exhibited symptoms including depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Additionally, the examiner opined that the Veteran's major depressive disorder prevents him from maintaining substantially gainful employment. The examiner noted that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his major depressive disorder. The Veteran described not getting enough restful sleep and feeling fatigued nearly every day. Furthermore, the examiner noted that the Veteran's poor interpersonal skills and workplace trust issues would result in increased paranoia and the Veteran would struggle with appropriate workplace interaction. The Veteran had another examination for his major depressive disorder in July 2019. The Veteran exhibited symptoms including depressed mood, anxiety, suspiciousness, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene. The Veteran reported that he did not feel he would be able to work, and that he had issues with people and anger, and physically he was incapable of sustained activity. In an October 2019 examination for the Veteran's tinnitus, the examiner noted that the Veteran's tinnitus impacted his ability to work. The Veteran stated that is keeps him from sleeping sometimes. In a December 2019 addendum medical opinion, the examiner stated that the Veteran's hearing loss and tinnitus, in and of themselves, would not preclude the Veteran from being gainfully employed and would have minimal functional impact on the Veteran's physical or sedentary employment. The examiner further noted that an environment with reduced ambient noise may be beneficial. The Veteran had another examination for his knee disabilities in January 2020. The examiner noted that the Veteran's knee disabilities would impact his ability to work. The examiner noted that the Veteran's knee disabilities would limit prolonged standing and walking and prevent kneeling, crawling, running, and stair climbing. Additionally, the examiner noted that although the Veteran's bilateral knee condition would limit him from performing work that required prolonged walking, standing, stair-climbing, squatting, or kneeling, the Veteran would likely not be limited from working in a sedentary or light duty position. Specifically, the examiner noted that the Veteran should be able to complete desk work, typing, filing, answering phones, computer work, etc. In a January 2020 sleep apnea examination, the examiner stated that the Veteran's sleep apnea would limit him from performing safety sensitive work, since he did not use his CPAP machine. Additionally, the examiner noted that the Veteran may have some absenteeism from work due to excessive fatigue. However, the examiner also indicated that the Veteran's sleep apnea should not limit the Veteran from performing sedentary type work. The Veteran had another examination for his major depressive disorder in January 2020. The examiner stated that the Veteran would have difficulty presenting a good image in a customer service job, and that his overall level of depression and pain would make it difficult for him to meet a regular schedule. The examiner further opined that the Veteran's limited ability to adapt to change or stress would result in difficulty in a job environment, and that his pain would likely interfere with his ability to concentrate and affect productivity. Additionally, the examiner stated that the Veteran would have difficulty in positions that required attention to detail or had a time requirement. The Veteran had a private assessment regarding the impact of his service-connected disabilities on his ability to work from Dr. M.B. in September 2020. After reviewing the evidence and consulting with the Veteran, the examiner concluded that the Veteran's service-connected disabilities prevent him from being able to work. The Veteran reported that his previous job required him to order produce, do marketing, paperwork, and unload trucks. The Veteran further stated that his legs would hurt all the time and that he was also falling asleep driving. The examiner indicated that the Veteran is only able to walk for 30 minutes due to his knee pain. The examiner further noted that the Veteran has poor sleep due to his service-connected disabilities, which impacts his ability to work. Beginning in April 2012, the evidence outlined above shows impairment from both non-service-connected disabilities (a back and leg condition) and service-connected disabilities (the psychiatric disability, knee disabilities, sleep apnea, and tinnitus). It also demonstrates that the Veteran was not employed at that time. However, the sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Smith v. Shinseki, 647 F.3d 1380, 1385 (Fed. Cir. 2011). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court explained that "substantially gainful employment" has economic and noneconomic components. The economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of the ability to secure or follow that type of employment. For the non-economic component, attention must be given to the Veteran's occupational history, education, skills, and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. When raised by the evidence, possible relevant factors for physical ability include limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Relevant factors for mental ability include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. In this case, the Veteran has a high school education and a long history of managing a department in a grocery store. He ended that employment due to mobility issues that he first attributed to an on-the-job back injury and leg problem notably, not a knee problem until further beyond the contemporaneous leaving of the job. Indeed, the Veteran's ratings for the knee disabilities and the underlying medical records that support those ratings reflect a significantly mild disability picture, not affecting his ability to work. However, the Veteran had significant psychiatric problems causing deficiencies in most areas, as his now 70 percent rating reflects. Additionally, as of February 2015, the Veteran was service-connected for sleep apnea, and it was evaluated as 50 percent disabling. This disability compounded his sleep issues, making him very fatigued during the day, which is known to have a significant impact on the ability to work productively. Additionally, the Veteran's depression symptoms continued during this period. The depressed mood, anxiety, suspiciousness, intermittent neglect of personal appearance and hygiene, and disturbances of motivation and mood all have the effect of preventing him for working well with others, especially members of the public, as he had been trained. Although the Veteran likely possesses some transferable skills from his past work as a produce manager, his poor sleep and limited ability to adapt to stressful situations, render him unable to successfully secure and maintain substantially gainful employment. Accordingly, the claim for entitlement to a TDIU is granted for the entire appeal period (from April 16, 2012). Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David M. Sebstead, 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.