Citation Nr: 21041482 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-04 912 DATE: July 9, 2021 ORDER Entitlement to an effective date earlier than October 6, 1998 for the award of a 30 percent rating for bronchial asthma is denied. Entitlement to a disability rating of 70 percent, but no higher, for obsessive compulsive disorder (OCD) from April 10, 2008 is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The informal claim of entitlement to an increased rating for bronchial asthma was received on October 6, 1998. 2. During the appeal period, the severity, frequency, and duration of the Veteran's symptoms did more closely approximate occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not shown. 3. The Veteran was precluded from securing and following substantially gainful employment as result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 6, 1998 for the award of a 30 percent rating for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5110, 5107; 38 C.F.R. §§ 3.400, 4.96, 5.97, Diagnostic Code 6602. 2. During the appeal period, the criteria for a disability rating of 70 percent, but no higher, for obsessive compulsive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9400-9404. 3. The criteria for entitlement to a TDIU have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1970 to January 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2013, August 2015, and January 2019, these matters were remanded to the Agency of Original Jurisdiction (AOJ) for additional development. The August 2013 remand directed the AOJ to provide the Veteran with VA examinations for his OCD and asthma. He underwent a respiratory conditions examination in March 2018, and psychiatric examinations in October 2013 and May 2018. The examinations are adequate because they describe his asthma and OCD in detail sufficient to allow the Board to make a fully informed determination. The August 2015 remand directed the AOJ to obtain the Veteran's Vocational Rehabilitation records, and these were added to the claims file in May 2017. The remand also requested an addendum opinion regarding the impact of the Veteran's respiratory condition on his daily living and occupational functioning, and this was done in June 2017. In all three remands, the AOJ was instructed to obtain outstanding private treatment records from Dr. S.C, and these were added to the claims file in September 2019. Additional VA treatment records were also obtained. The January 2019 remand also directed the AOJ to obtain VA treatment records from the San Juan VA Medical Center (VAMC) from 1993 to 1998. Records from June, August, and September 1998 were obtained. In October 2019, a negative reply was received because there were no records for the remaining part of the time period. The Veteran was notified of this in the June 2020 Supplemental Statement of the Case (SSOC). There was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Earlier Effective Date for Bronchial Asthma Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For this particular claim, the VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101; 38 C.F.R. § 3.151 (2008). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. 38 C.F.R. §§ 3.1, 3.155 (2008). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157 (2008). The date of a VA medical record will be accepted as the date of receipt of a claim when such record relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such record. 38 C.F.R. § 3.157 (2008). The Veteran seeks an effective date earlier than October 6, 1998 for the award of 30 percent rating for service-connected bronchial asthma. See May 2018 Form 9. In April 10, 2008, the Veteran filed a claim seeking a higher rating for his bronchial asthma. In an October 2013 rating decision, the RO awarded a 30 percent rating for bronchial asthma effective April 23, 2008. Later, in a February 2018 rating decision, the RO granted an earlier effective date of October 6, 1998 for the award of 30 percent rating for bronchial asthma. The RO granted the effective date of October 6, 1998 for the award of 30 percent rating for bronchial asthma because it found that a VA treatment record on that date showed a prescription for Albuterol, and consequently constituted an informal claim for an increased rating under 38 C.F.R. § 3.157 (2008). This regulation was in effect in April 2008, when the Veteran filed his claim for an increased rating (the regulation has since been repealed). During the January 2019 Board decision, the Board denied a higher rating in excess of 30 percent for bronchial asthma from October 6, 1998 to present. For the period prior to October 6, 1998, the Board remanded that issue in order to obtain any outstanding treatment record for that period. The Veteran asserted that VA treatment records prior to October 1998 would show treatment for asthma that would support an earlier effective date. The question before the Board is whether an effective date earlier than October 6, 1998 for the award of 30 percent rating for bronchial asthma is warranted. The RO attempted to obtain treatment records for the period prior to October 1998 from the San Juan VA Medical Center (VAMC), the location where the Veteran was treated. A review of the record indicates that treatment records from San Juan VAMC from January 1972 to October 1993 did not exist. See February 2018 Report of General Information. Additionally, attempts to obtain San Juan VAMC treatment records for the period from May 1986 to October 1993 yielded a negative response. See January 2018 VA 10-7131 VA 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action, see also January 2018 Third Party Correspondence. Most recently, the treatment records for the period from October 1993 to September 1998 at San Juan VAMC could not be located. See October 2019 VA 10-7131 Exchange of Beneficiary Information and Request for Administrative and Adjudicative Action. Based on the foregoing, the Board finds that the evidence of record does not support an effective date earlier than October 6, 1998 for the award of 30 percent rating for bronchial asthma. The RO last denied a higher rating for asthma in a December 1983 rating decision. The evidence of record does not show an informal claim for bronchial asthma between December 1983 until October 6, 1998. During the period from December 1983 until October 1998, the record did show medical treatment for the Veteran's psychiatric condition. However, the evidence did not show treatment for bronchial asthma that would warrant an earlier effective date for the grant of 30 percent rating. Further, the Veteran had multiple increased rating claims for his psychiatric condition which were separately denied in an April 1985 Board decision and an August 1998 rating decision. However, the evidence did not show claims that could have be construed as informal claims for a higher rating for bronchial asthma. Accordingly, the Board finds that an effective date earlier than October 6, 1998 for the award of 30 percent rating for bronchial asthma is not warranted, and the claim is denied. 2. Disability Rating for Obsessive Compulsive Disorder The Veteran's obsessive compulsive disorder is evaluated under Diagnostic Code 9400-9404, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is 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. Id. A 30 percent rating is warranted when there is 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. Id. A 50 percent rating is warranted when there is 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 work-like setting; and the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this case, the Veteran filed a claim for increased rating for obsessive compulsive disorder in April 10, 2008. The Veteran asserted that his obsessive compulsive disorder had worsened resulting in his difficulty maintaining employment. At that time, the Veteran was receiving a 30 percent rating which had been effective since June 24, 1998. The Board concludes 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. The Veteran was afforded a VA examination in May 9, 2008. The examiner noted that the Veteran had developed increased irritability and depressive feelings. He expressed anger over a situation at work which he considered unfair and discriminatory, and he stated that he would not be returning to work. The Veteran had insinuated ideas of death and how people deny suicidal ideas and then go out and kill themselves. These same people would express feeling of "life is not worth living." The Veteran felt depressed most of the time. On examination, the Veteran was observed as casually dressed, irritable, guarded, dysphoric, and oriented to person, time, and place. He reported suicidal thoughts. His memory was normal, he had good hygiene, and he had no mental impairments with performance of daily activities. Although he was currently employed, he had experienced difficulties at work and had failed to go to work since January 2008. In a June 2008 private letter by the Veteran's psychiatrist, it was reported that the Veteran had recurrent major depression that was totally incapacitated and incurable. The Veteran submitted an August 2008 private psychiatric report by a Dr. M.S.C. The Veteran was initially seen in May 13, 2008 where he reported experiencing depression, anxiety, irritability, poor impulse control, sleep disturbance, isolation, obsessive thoughts, lack of energy, memory impairment, lack of concentration, frequent suicidal ideas, and crying episodes. On examination, the examiner noted that the Veteran had decreased psychomotor activity, frequent suicidal ideation, compulsion behavior, obsessive thoughts, mood depression, memory impairment, easily distracted, occasional panic attacks, and difficulty in social functioning. In an August 2010 and a December 2010 VA treatment note, the Veteran reported feeling hopeless about the present or future. He reported having suicidal thoughts about 3 months ago. During the February 2013, June 2013, October 2013, and March 2014 VA treatment, the Veteran reported feeling sad, with crying spells, irritable, tense, with low energy, death wishes, hopelessness, helplessness and having decreased interest in activities. The Veteran underwent a VA examination in October 2013. The Veteran had few friends but primarily socialized with his family. He was unemployed and receiving Social Security Administration (SSA) benefits for depression, back, and neck. Upon examination, the Veteran was well groomed, responsive, alert and oriented, had normal speech and eye contact, had irritable mood, and denied any hallucinations. His insight and judgment appeared to be intact and his memory appeared to be within normal limits. He denied suicidal ideation but stated "I am ready to die" with no intent or plan. The examiner noted that the Veteran's psychiatric disability manifested in symptoms of depressed mood and anxiety. The examiner opined that the Veteran's symptoms were productive of 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 medication. In an April 2018 VA treatment, the Veteran reported an encounter a few weeks ago where he talked using profane language and punched a man who hit his car. He admitted to having death wishes at times. The Veteran was afforded a VA examination in May 2018. The Veteran reported living with his wife and grandchild, but currently having marital issues. He keeps in touch with his children and his sister, and has some neighborhood friends. He does not work but has previously applied for jobs, to include through vocational rehabilitation. On examination, the examiner noted that the Veteran's psychiatric disability manifested in symptoms of depressed mood and anxiety. The Veteran was well groomed, oriented, had good eye contact and speech, cooperative, and his mood was euthymic. His affect was congruent to his mood, and he denied current suicidal or homicidal ideation. His thought process was linear, logical, and goal-directed. His insight, judgment, and reasoning appeared intact, and there was no evidence of any perceptual disturbances, paranoia, or delusional thinking. The examiner opined that the Veteran's symptoms were productive of 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 medication. The examiner further opined that the Veteran does not appear to be precluded from occupational functioning based on mental health condition alone. The Veteran's ability to remember locations and work like procedures, ability to understand and remember very short and simple instructions, and ability to understand and remember detailed instructions are mildly impaired. Further, the examiner noted that the Veteran's ability to work in coordination with or in proximity to others without being distracted by them, and ability to accept instruction and respond appropriately to criticism from supervisors is considered mildly impaired. Upon review of the evidence, the Board finds that evidence show that the Veteran's obsessive compulsive disorder was manifested by symptoms associated with a 70 percent rating, to include symptoms such as suicidal ideations. The Board notes that the Veteran expressed 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. The Veteran had at times denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the May 2018 VA examination. The record does not show that he is a persistent danger to himself or others. The Board acknowledges the October 2013 and May 2018 VA examination reports which found that the Veteran's symptoms were productive of occupational and social impairment due to mild or transient symptoms which decrease work efficiency. However, the overall evidence of record does show symptoms, such as suicidal ideation, which is sufficient to meet the 70 percent rating criteria. The Board further finds that the rating criteria for a 70 percent rating is met effective April 10, 2008, the date when the Veteran reported that his obsessive compulsive disorder worsened to the point where he had difficulty maintaining gainful employment. While the Veteran did experience symptoms contemplated by a 100 percent ratingsuch as in the June 2008 private letter noting totally incapacitatedthe evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Although the Board grants a TDIU in this decision in part due to his obsessive compulsive disorder, total social impairment is not shown. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The evidence does not show that he was not totally socially impaired. For instance, the Veteran continued to maintain a social relationship with his family and his neighborhood friends. The overall evidence does not show that there is both total occupational and total social impairment. Accordingly, for the duration of the appeal period, the Board finds that a 70 percent rating, but no higher, is met for service-connected obsessive compulsive disorder. 3. TDIU The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the period from April 10, 2008, the Veteran meets the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected obsessive compulsive disorder and bronchial asthma, tinnitus, and right ear hearing loss. 38 C.F.R. § 4.16(a). On his May 2008 application for unemployability he reported that his obsessive compulsive disorder and bronchial asthma prevents him from following a substantially gainful occupation. The Veteran reported completing a 2 year college education. He reported he last worked full-time in January 2008 as a service representative. Examination findings for obsessive compulsive disorder are noted above. The Veteran presented for a VA examination in May 2008 to assess the current severity of his service-connected bronchial asthma, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran reported not being employed. In a June 2017 VA medical opinion, the examiner opined that the effects of the Veteran's asthma on his activities of daily living and occupational and functioning is minimal due to the fact that the findings on exam and pulmonary function test (PFTs) were suggestive of mild asthma. However, the examiner clarified that the exam was 4 year old and thus not applicable for assessing the current effects of his service-connected asthma to his activities of daily living and occupational functioning without resorting to mere speculation. The Veteran presented for a VA examination in March 2018 to assess the current severity of his service-connected bronchial asthma, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The examiner reported that the Veteran most likely would not function well in physical roles such as in carpentry, lawn maintenance, painting, or anything requiring strenuous physical labor or requiring him to be in the heart for long periods of time. The examiner further noted that the Veteran most likely would function well in predominantly sedentary roles such as clerical/office work, telephones sales, data entry, home based computer/telephone sales, or retail sales with limited walking/standing. The Veteran underwent a June 2018 VA audio examination to assess the current severity of his service-connected right ear hearing loss and tinnitus. The Veteran reported that his right ear is worse than his left ear, and that he cannot tell if the noises are in his ear or in the environment and he does not localize well. The Veteran also reported that his tinnitus causes him discomfort, inconvenience, and annoyance. Treatment records are not in significant conflict with findings during VA examination. For example, SSA medical records reveal that the Veteran was found disabled effective January 8, 2008 partly as a result of his psychiatric disorder. Taken as a whole, the Veteran's symptoms do suggest he was unable to obtain and maintain employment. Considering his bronchial asthma, medical evidence shows that the Veteran would most likely would not function well in physical roles, but may perform sedentary employment. See March 2018 VA Examination Report. The Veteran's right ear hearing loss and tinnitus may have some impact in an office job due to his difficulty telling where the noise is coming from and feeling discomfort, inconvenience, and annoyance. With obsessive compulsive disorder, the Board takes into consideration how the disorder impacts his ability to work in an office due the mild affects to his memory, ability to understand simple instructions, ability to work with others, and ability to receive criticisms. See May 2018 VA Examination Report. Of note, the Board gives great probative weight to the SSA medical records which has found that the Veteran has been disabled since January 2008 due in part to his psychiatric condition. (Continued on the next page) Given the Veteran's education and work history as a service representative, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiner/s and treatment provider/s, the Board does consider this level of impairment as one that would preclude employment, both physical and sedentary. The Board considered the Veteran's lay statements that his service-connected conditions and the side effects of his medications for those conditions have worsened his quality of life and his ability to work and be productive and non-problematic for any public or private company. See August 2020 Correspondence. The Board acknowledges his physical/mental limitations would make it difficult to work. Accordingly, resolving the benefit of the doubt in the Veteran's favor, the Board finds the weight of the evidence is in favor of finding that the Veteran's service-connected disabilities rendered him unable to secure and maintain substantially gainful employment. Thus, a TDIU is warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.