Citation Nr: 21031832 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-35 547 DATE: May 24, 2021 ORDER Entitlement to compensation under 38 U.S.C. § 1151 for a hernia disorder is dismissed. Entitlement to compensation under 38 U.S.C. § 1151 for vocational rehabilitation problems is dismissed. Entitlement to an earlier effective date for the award of a 100 percent increased disability rating prior to April 2, 2014 for major depressive disorder is denied. FINDINGS OF FACT 1. In a September 2016 Notice of Disagreement, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal of the issue of entitlement to compensation under 38 U.S.C. § 1151 for a hernia disorder and vocational rehabilitation problems. 2. On July 1, 2014, VA received the Veteran's claim for an increased rating for his service-connected major depressive disorder; no formal claim, informal claim; or written intent to file a claim for an increased rating was received prior to this date. 3. It is not factually ascertainable that the Veteran's major depressive disorder manifested with total occupational and social impairment within a year prior to the date of receipt of his increased rating claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal for compensation under 38 U.S.C. § 1151 for a hernia disorder have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of an appeal for compensation under 38 U.S.C. § 1151 for a vocational rehabilitation problem have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for entitlement to an earlier effective date for the award of a 100 percent increased disability rating, prior to April 2, 2014, for major depressive disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to July 2001 and from November 2002 to March 2003. Withdrawal Entitlement to compensation under 38 U.S.C. § 1151 (benefits for persons disabled by treatment or vocational rehabilitation) for a hernia disorder and vocational rehabilitation problem. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a September 2016 written statement (Notice of Disagreement), the Veteran withdrew his claim of entitlement to compensation under 38 U.S.C. § 1151 for "Hernia and Voc Rehab." Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. Earlier Effective Date Entitlement to an effective date prior to April 2, 2014, for the increased rating of 100 percent for major depressive disorder with psychotic features. The Veteran contends that he is entitled to an effective date prior to April 2, 2014 for the increased rating of 100 percent for major depressive disorder with psychiatric features. Specifically, the Veteran contends that October 2, 2006 is the appropriate effective date of the claim. Procedurally, by way of an October 2003 rating decision, the Veteran was service connected and assigned a 30 percent disability rating for an acquired psychiatric disorder (then characterized as mood, anxiety, and cognitive disorder) effective March 20, 2003. In a July 2008 rating decision, a temporary evaluation of 100 percent was assigned effective November 28, 2007 because of hospitalization over 21 days. An evaluation of 50 percent was assigned thereafter, beginning March 1, 2008. In a January 2009 rating decision, a temporary evaluation of 100 percent was assigned from September 3, 2007 until March 1, 2008 at which time a 50 percent rating was assigned. In a June 2011 rating decision, a temporary rating evaluation was assigned effective May 22, 2009; a 70 percent rating was assigned thereafter, beginning August 1, 2009. In a March 2015 rating decision, service connection for major depressive disorder with psychotic features (formerly diagnosed as schizophrenia, paranoid type) was granted with an evaluation of 100 percent effective April 2, 2014. This rating decision also denied entitlement to a temporary total evaluation under 38 U.S.C. § 4.29. In assigning effective dates for increases, except as provided in 38 C.F.R. § 3.400(o)(2) and § 3.401(b), the effective date is date of receipt of claim or date entitlement arose, whichever is later. The exception in § 3.400(o)(2) provides that the effective date is the earliest date of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date; otherwise the effective date is the date of claim. Prior to March 24, 2015, a claim was defined as 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). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). As to the date of the claim, the Veteran filed a formal claim for an increased rating for his service-connected acquired psychiatric disorder on July 1, 2014. There is no written communication or document earlier than July 1, 2014, that may be construed as a claim for an increased rating for an acquired psychiatric disorder or indicating intent to file a claim. Additionally, the Veteran has not asserted that a claim was filed earlier than this date. As to the date entitlement arose, the Board will discuss and evaluated the following medical and lay evidence of record: An October 17, 2013 VA treatment record reveals that the Veteran presented with complaints of nightmares and paranoid thoughts. He also stated, at the time of treatment that he believed he would inevitably die by suicide if there was no resolution of his symptoms. The clinician also noted that the Veteran's symptoms included depression, recurring thoughts, and waking up feeling intoxicated. At the time of treatment, he stated that he did not have contact with his family but cared for a dog. A VA treatment record, dated three days later, revealed that the Veteran presented a low imminent suicide risk. Also, at the time of treatment, the Veteran was appropriately groomed, neat, and clean; presented an animated affect when taking about his dog; his eye contact was direct; and his behavior was cooperative, calm, interactive, and appropriate. The Veteran's thought process was coherent and detailed; his thought content was appropriate to the topic; and his memory was within normal limits. His speech was normal, and he was oriented to person, place, and time. The Veteran did not have hallucinations or suicidal ideation. The clinician noted that the Veteran's working diagnosis was major depression with psychosis though psychiatric disorder secondary to coarse brain pathology with depression and paranoid ideation was evident. A November 22, 2013 VA treatment record shows that the Veteran had thoughts of hurting himself, but that he had no plan. A January 2014 VA treatment record reveals that the Veteran wrote about suicide in letters, but he stated that he did not plan to commit suicide at the time. Also, at the time of treatment, the Veteran reported that he felt that, in the end, he would have to resort to this, but he would not give a timeframe. The clinician determined that the Veteran did not present an imminent danger to himself per the criteria for mental health commitment. A January 2014 VA treatment note shows that the Veteran continued to "realize that suicide is the best option." The Veteran reported that he was having dreams/nightmares that people were giving him pills and that he was suspicious of food being "laced." The next day, the Veteran reported that he was "having trouble not committing suicide" and could not think of a reason not to do it. The Veteran was afforded a VA examination in December 2014, at which time the examiner noted diagnoses of major depressive disorder with psychotic features and cannabis use disorder in sustained remission. The examiner reported that the final diagnosis of major depressive disorder was a correction of the previous service-connected diagnosis. Upon examination, the Veteran was alert and oriented, cooperative, appropriately dressed; and his mood was dysthymic. At the time of the examination, the Veteran reported that he lived alone and had never been married and had no children. The Veteran reported that although he previously attended college, he was not working stating that he had too many medical conditions to work. The symptoms associated with the Veteran's depression included depressed mood, loss of interest, loss of pleasure, sleep disturbance, loss of energy, and decreased concentration, and history of mood congruent delusions. The examiner noted that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform due solely to his depressive symptoms. Symptoms that applied to the Veteran's diagnoses included depressed mood; anxiety; suspiciousness; near continuous panic or depression affecting the ability to function independently; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; inability to establish and maintain effective relationships; and suicidal ideation. An April 2, 2014 VA treatment record shows that the Veteran's diagnosis was changed from that of schizophrenia to major depressive disorder, recurrent, with psychotic features. At the time of treatment, the Veteran reported that it is difficult for him to disbelieve paranoid thoughts when he is suffering from a lack of sleep. The Veteran also noted that he continues to have suicidal thoughts that worsen when he feels more paranoid. The clinician noted that the Veteran remained relatively anhedonic. Another April 2014 VA treatment record shows that a clinician believed that the Veteran would eventually attempt and possibly would commit suicide as his predisposing risk factors were pronounced. The clinician also noted that the Veteran carried a diagnosis of major depression disorder with psychosis and noted that the Veteran adamantly rejected the schizophrenia diagnosis. A May 2014 VA treatment record shows that the Veteran voluntarily admitted himself into an inpatient psychiatric facility. Also, a May 2014 certificate of medical examination shows that the Veteran suffered from severe and abnormal mental, emotional, or physical distress and presented with threats of suicide and somatic delusion. The clinician noted that the Veteran was likely to cause serious harm to himself and others and was unable to make rational and informed decisions as to whether to submit to treatment. In a July 1, 2014 letter, the Veteran reported that his issues with depression worsened and that he thought of suicide frequently. The Veteran also stated that it had progressed to the point where he thought he would commit suicide. The Veteran further noted that his diagnosis of schizophrenia had restricted him from doing what he wanted. A December 31, 2014 VA treatment record reveals that the Veteran delivered two letters to two doctors stating that he "is left with no recourse" but to commit suicide because "things have not changed." The Veteran denied being imminently suicidal but noted that he continued to feel paranoid that people were tracking him. No apparent hallucinations were noted. The clinician noted that the Veteran was alert and oriented and that the mood lightened when the Veteran talked about his dog. In a June 2015 letter, the Veteran reported that his schizophrenia diagnosis was made in error. In support of the claim, the Veteran submitted a VA treatment note, dated October 2, 2006, in which the examining clinician noted a diagnosis of major depressive disorder with psychotic features and polysubstance abuse. Schizophrenia had been ruled out. The Veteran also submitted a letter dated February 29, 2012, which stated that he had not been diagnosed with schizophrenia when he was treated and discharged from a facility in February 2008. Upon review of the evidence, the Board does not find that a 100 percent rating is warranted at any point during the appeal period prior to April 2, 2014. Even when considering the April 2014 VA treatment record, the clinician did not find that the Veteran's acquired psychiatric disorder contributed to the total occupational and social impairment that characterizes the 100 percent rating. Moreover, there is no evidence to support that the Veteran has exhibited many of the criteria that encompass the 100 percent rating prior to the currently assigned effective date. The Board has also taken into consideration the lay statements of record. Once again, while these statements reflect the significant impairment of occupational and social functioning that characterize the 70 percent rating, in the Board's estimation, the lay statements do not show total occupational and social impairment, as would be necessary for the 100 percent rating. The Board has also considered the Veteran's argument that October 2, 2006 is the more appropriate date to be assigned, asserting that at such time schizophrenia was ruled out. However, the Board finds that this argument is not persuasive. In this regard, the Board notes that a Veteran is compensated for symptoms and not diagnoses. In this case, although his acquired psychiatric disorders have been evaluated under different diagnostic codes, the symptomatology guiding the rating to be assigned is the same under 38 C.F.R. § 4.130. As such, regardless of whether the disorder is classified as schizophrenia or major depressive disorder, both acquired psychiatric disorders, the rating to be assigned is subject to the same General Rating Formula for Mental Disorders. While the Board will not disturb the effective date for the currently awarded 100 percent rating, the preponderance of the evidence is against a finding that this 100 percent rating is warranted prior to April 2, 2014. The earlier effective date claim is therefore denied. Lastly, the Board finds that entitlement to a temporary total evaluation under 38 C.F.R. § 4.29 for hospitalization is also not warranted as the evidence shows that the Veteran was hospitalized for two weeks between May 2014 and June 2014. In this regard, a total disability rating of 100 percent requires hospitalization or hospital observation for a period in excess of 21 days. Accordingly, the Board finds that the preponderance of the evidence is against assigning an effective date earlier than April 2, 2014 for the award of an increased rating of 100 percent for major depressive disorder as the Veteran is already in receipt of the earliest possible effective date. Therefore, the benefit-of-the-doubt rule is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hanson, Tiffany 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.