Citation Nr: 22015645 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 19-00 897 DATE: March 18, 2022 ORDER Entitlement to an earlier effective date of August 5, 2013, for the award of an initial 70 percent disability rating for major depressive disorder with anxious distress is granted. FINDINGS OF FACT 1. A July 2014 rating decision granted entitlement to service connection for adjustment disorder with depressed mood and assigned an initial noncompensable evaluation effective from August 5, 2013; and the Veteran filed a timely notice of disagreement (NOD) with the initial assigned rating in July 2015. 2. The agency of original jurisdiction (AOJ) issued a May 2018 DRO decision that recharacterized the disability as major depressive disorder with anxious distress and increased the disability rating to 70 percent effective from May 22, 2018; and the Veteran filed a timely August 2018 NOD with the effective date for the award of the 70 percent rating for his psychiatric disability. 3. It is factually ascertainable that the Veteran's major depressive disorder with anxious distress was manifested by occupational and social impairment with deficiencies in most areas at least as early as August 5, 2013. CONCLUSION OF LAW The criteria for an earlier effective date of August 5, 2013, for the assignment of an initial 70 percent evaluation for major depressive disorder with anxious distress have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the United States Navy from November 2001 to November 2005, and in the United States Army from February 2009 to December 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2018 Decision Review Officer (DRO) decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript from that proceeding is associated with the claims file. The Board notes that additional Veteran Readiness and Employment (VR&E) (Formerly known as Vocational Rehabilitation and Employment) records were associated with the claims file after the November 2018 Statement of the Case (SOC). Although the Veteran has not provided a waiver of the AOJ's initial consideration of this additional evidence, these records provide information that is either duplicative of the prior evidence of record or has no material effect on the outcome of the earlier effective date claim decided herein. Furthermore, and as explained in further detail below, the Board is granting the earliest possible effective date for the award of the 70 percent rating for the Veteran's psychiatric disability. As such, the Board finds that a remand for initial AOJ review of this evidence in relation this claim is not necessary, and there is no prejudice to the Veteran in proceeding with the adjudication of this issue. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an effective date earlier than May 22, 2018, for the award of an initial 70 percent disability rating for major depressive disorder with anxious distress. The Board notes that the procedural regulations for appeals to the Board have been considered as amended by the Appeals Modernization Act (AMA). The substantive laws and regulations provided in this decision for the assignment of effective dates are from the former version that was in effect at the times relevant to this case. In addition, the current version in effect would result in the same outcome in this case. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean, except as otherwise provided, 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 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ("It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) ("increase" for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Under the former regulations prior to March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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 an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The record shows that a July 2014 rating decision granted entitlement to service connection for adjustment disorder with depressed mood and assigned an initial noncompensable evaluation effective from August 5, 2013. The Veteran filed a timely NOD with the initial assigned rating in July 2015. In response to the July 2015 NOD, the AOJ issued a May 2018 DRO decision that recharacterized the disability as major depressive disorder with anxious distress and increased the disability rating to 70 percent effective from May 22, 2018. The AOJ separately issued a May 2018 SOC that denied entitlement to an increased rating in excess of 70 percent for major depressive disorder with anxious distress, and the Veteran did not file a VA Form 9 to continue his appeal for an increased rating. Instead, the Veteran filed an August 2018 NOD in response to the May 2018 DRO decision seeking an earlier effective date for the award of the 70 percent rating for his psychiatric disability. As the 70 percent rating awarded by the May 2018 DRO decision stems from the Veteran's timely appeal of the July 2014 rating decision's initial assigned rating for his psychiatric disability, an effective date may be assigned as early as August 5, 2013, the date of the grant of service connection for this disability. Different statutory and regulatory provisions apply depending on whether the claim is an original claim or one for increased compensation. For example, generally for an original claim, the effective date can be no earlier than the date of claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (b)(2)(i). An effective date for an increased-rating claim may date back as much as one year before the date of the claim for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997) (stating that § 3.400(o)(2) applies to claim where increase in disability precedes claim, providing that that claim is received within one year after increase, otherwise general rule in § 3.400(o)(1) applies). Nevertheless, the effective date for an increased rating, initial rating, or staged rating is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. § Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In contrast, for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). For both types of increased rating claims, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Such separate disability ratings are known as staged ratings. As indicated above, the Veteran's disability was first characterized as adjustment disorder with depressed mood and assigned an initial noncompensable evaluation under Diagnostic Code 9400 for the period prior to May 22, 2018. 38 C.F.R. § 4.130. On and after May 22, 2018, the disability was recharacterized as major depressive disorder with anxious distress, and the disability rating was increased to 70 percent under Diagnostic Code 9434. 38 C.F.R. § 4.130. Although the May 2018 rating codesheet only reflects the new characterization of the disability as major depressive disorder with anxious distress, the codesheet nevertheless shows that the disability was only evaluated under Diagnostic Code 9400 prior to May 22, 2018. However, the actual criteria for rating the Veteran's disability are set forth in a General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. These rating criteria provide that a noncompensable evaluation is assigned when 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. A 10 percent rating is warranted for 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. A 30 percent rating is warranted for 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). A 50 percent rating is awarded for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once 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. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact occupational and social impairment. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear the veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vasquez-Claudio, 713 F.3d at 118. The Board acknowledges that psychiatric examinations frequently include the assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5) has been officially released, and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. The Court added that it does not hold that the Board commits prejudicial error every time the Board references GAF scores in a decision. As this appeal was initially certified to the Board in January 2019, the DSM-5 criteria apply to this case. Consequently, the Board will not afford any probative value to any GAF scores that are documented in the record. In January 2014, a VA treatment record noted that the Veteran's chief complaint was a tooth abscess that burst. During the visit, he denied having any desire to harm himself or others. The Veteran was provided with a VA examination to evaluate his psychiatric disability in May 2014. The only diagnosis was adjustment disorder with depressed mood. The examiner commented beneath the diagnosis that the Veteran endorsed, was observed, and/or was noted to have the following symptoms: irritability, poor frustration tolerance, and slightly decreased appetite with no weight loss. The examiner opined that the disability was best summarized as a mental condition that had been formally diagnosed, but symptoms were not severe enough to either interfere with occupational and social functioning or to require continuous medication. Regarding the Veteran's social relationships, the examiner noted that he had a good relationship with his mother and a fair relationship with his father. The Veteran also had decent relationships with 4 of his siblings, although the examiner indicated that there were other siblings who were either deceased or had no relationship with the Veteran. The Veteran had been married to his second wife for two months after living together for three years, and their relationship was great. The Veteran was married to his first wife for 8 years, and he had 3 minor children with whom he had good relationships. After service, the Veteran furthered his education by taking college courses and planned to graduate in July 2014 with an Associate's degree in criminal justice. The Veteran's post-service employment consisted of working for 7 to 8 months as a construction worker, in odd jobs such as cleaning floors, in a position moving furniture for several weeks, as a sales associate for a hardware store for more than one year, and in his current position of three months as mail processing clerk for the United States Postal Service (USPS). He denied having performance problems, a history of ever being fired from a job, or experiencing difficulty with coworkers and/or supervisors. The Veteran also denied ever being admitted to a psychiatric hospital, attempting suicide or homicide, or having auditory or visual hallucinations. The Veteran indicated that he was prescribed Paxil that he took about one year ago, and he did not have any current medications. The Veteran reported a legal history of being charged with a DUI in 2012, but he denied a history of violent behavior. He also denied engaging in illicit drug use after service, and he reported currently drinking alcohol on an occasional basis, approximately once every 2 to 3 weeks. He reported participating in substance abuse treatment as a condition of his DUI. Under the symptoms section of the report, the examiner only marked depressed mood. The examiner found the Veteran to be capable of managing his financial affairs. The examiner also stated that the Veteran did not appear to pose any threat of danger or injury to himself or others. In the Veteran's July 2015 NOD, he reported having really bad mood swings and constantly distantly himself from everyone else, including his spouse. In a September 2017 letter from the VR&E records, Dr. S., MD, noted that the Veteran was stable and able to work at a job for which he was qualified. However, Dr. S. also described the Veteran as an individual with a severe documented psychological disability. In October 2017, a VA mental health outpatient note stated that the Veteran presented to monitor his symptoms of affective distress, discuss progress towards his identified goals, and discuss various interventions for addressing feelings of irritability/agitation. The Veteran shared recent developments related to his position with VA's Compensated Work Therapy (CWT) program and good news that he received regarding his entitlement for vocational rehabilitation funding. However, he stated that his mood had been down for the last couple of weeks which he identified as related to ongoing frustrations at work. His mood was currently much better due to his good news. The provider noted that given the Veteran's interest in acquiring tools for emotion regulation, the Veteran was educated on mindfulness. Under the mental status evaluation, the provider noted that the Veteran described his mood as up and down. There was no evidence of perceptual disturbance, and no indication of suicidal or homicidal ideation. The diagnoses were adjustment disorder with depressed mood, rule out depressive disorder due to another medical condition. Under the plan, the provider noted that various triggers associated with the Veteran's low mood and emotional reactivity would continue to be assessed, including his chronic back pain; and the Veteran would be further educated on mindfulness for emotional regulation. In November 2017, a VA treatment record noted the Veteran's report of frustration related to difficulties with another employee in the CWT program involving behaviors the Veteran perceived as making his job more difficult. The Veteran had reported this behavior to the appropriate personnel without noticing any change. The provider stated that the Veteran's anger was often related to being treated as "less than" or inferior. The Veteran also reported being frustrated regarding his son's suspension from school. The provider challenged the Veteran to consider different ways to manage his anger in response to both situations. The Veteran's mood during the appointment was described as irritated with a congruent affect, and he denied having suicidal or homicidal ideation, intent, or plan. The diagnosis was depressive disorder, unspecified; and the provider noted under the plan that the Veteran's emotional reactivity would continue to be explored. In December 2017, a VA treatment record noted that the Veteran presented to address symptoms of affective distress and feelings of irritability/agitation in daily life. The session focused on exploring reasons for the Veteran's frustration in his current work position as well as his tolerance for interpersonal conflict in daily life. The Veteran described a divide between doctors/nurses and hospitality staff such as the Veteran as "us [versus] them." The Veteran also viewed himself as different from his coworkers as his problems were psychologically related whereas his coworkers had issues that were more substance related. The provider noted that the Veteran's tendency to lose control and react at the height his frustration in the past was discussed. The Veteran described his body taking over at a certain point with the Veteran feeling he had little ability to interfere with his aggressive behaviors. The Veteran's girlfriend was the one person he did not feel guarded with, and thoughts of her could stop him from acting on his irritability. The Veteran reported that when he became angry, he tensed, breathed heavily, experienced a racing heart, and felt the hairs on the back of his neck stand up. The diagnosis was adjustment disorder, unspecified, and the Veteran denied having suicidal or homicidal ideation. During a subsequent December 2017 appointment at VA, the Veteran reported problems with a certain superior at work. A series of encounters with the superior built up feelings of mistreatment until the previous day when the Veteran suddenly felt angry, rageful, began crying, and had confusing thoughts and emotions rapidly occurring. Another coworker advised the Veteran to get some help, and this event prompted the Veteran to make the current appointment. The provider noted that his experiences of feeling devalued and sabotaged by a colleague were compared to past experiences in different work contexts when similar events occurred. The Veteran did not anticipate any confrontation occurring between him and his coworker in the immediate future. A January 2018 VA treatment record continued to reflect that the Veteran attended an individual psychotherapy appointment in part to address feelings of irritability/agitation in daily life. A subsequent February 2018 VA treatment record noted that the Veteran denied having any current suicidal or homicidal intent or plan. In a March 2018 psychology note, the provider noted that they discussed how the Veteran's chronic pain could be a contributing factor to his emotional distress, particularly his level of irritability. The plan noted that they would continue to identify triggers for anger, frustration, and irritability. The Veteran continued to deny any current suicidal/homicidal ideation, intent, or plan. Later in March 2018, a VA psychiatric note documented the Veteran's report that he was easily distracted and experienced anxiety and depression. The Veteran's main complaint related to difficulty with concentration in school. He also reported depression related to worry of how much he had to do. At times, he became tearful when alone. He also isolated himself to avoid acting out on his anger and reported initial insomnia. The provider additionally stated that the Veteran experienced recurring suicidal ideation, but he pushed the thoughts away as he had no intent or plan. Regarding anger, the Veteran was often irritable. He became sarcastic or demonstrated an attitude when people angered him. In the past, the Veteran had thrown things or punched walls. The most recent episode of violence was 1.5 months ago when he became involved in a heated confrontation with a coworker that came close to blows before other coworkers intervened. The last time the Veteran actually assaulted someone was 1.5 years ago when he was working at USPS and a coworker sexually assaulted him. There were no arrests for violence. However, the Veteran no longer had a firearm as the police took it away when was living in the South and his wife falsely alleged that he committed domestic violence. The Veteran did not have any intent to harm anyone. He currently drank 2 bottles of wine during the workweek and another bottle over the weekend. The Veteran denied recreational drug use. The Veteran had walked out of his marriage to his previous wife due to fear of his anger, and they were now separated. In April 2018, a VA treatment record noted that the Veteran denied having any current suicidal or homicidal ideation, intent, or plan. The Veteran discussed his goal of improving his relationship with his daughter, reporting that he had kept his distance from her out of fear that she would see him become angry and unable to control his levels of frustration. The provider briefly introduced anger management skills to acquaint the Veteran to techniques that could potentially be useful during situations that pushed his frustration tolerance. The diagnosis was other specified depressive disorder, in partial remission. A subsequent April 2018 VA treatment record included the Veteran's report that he became irritable with others easily and tended to walk away when this event occurred as he was afraid that he would otherwise lose control and become violent. The Veteran reported that this symptom was one reason why he left his children with their mothers in the South and moved up North. He had found that there were times when his anger would get the best of him, and he feared that he might lose control and hurt his children in anger. Later in April 2018, a VA treatment record noted that the Veteran endorsed passive suicidal ideation that he attributed to his bupropion medication. However, the provider noted that the Veteran did not take this medication on daily basis as prescribed. The diagnosis was other specified depressive disorder. In May 2018, a VA treatment record noted that the Veteran denied having any passive suicidal ideation that week. However, the past week was extremely difficult due to numerous situational stressors at school, at home, and while running errands that caused his levels of frustration and irritability to increase. The Veteran described one instance that was particularly triggering for him that required a customer support representative to intervene and help deescalate the situation. An additional VA examination to evaluate the Veteran's psychiatric disability was later conducted on May 22, 2018. The only diagnosis was major depressive disorder, recurrent, anxious distress. The examiner commented that this disability was previously diagnosed as adjustment disorder with depressed mood. The examiner opined that the disability was manifested by occupational and social impairment with reduced reliability and productivity. Regarding the Veteran's social history, the examiner indicated that the Veteran had been separated from his second wife since 2016, and he was living with his girlfriend of 1 year. He also lived with his girlfriend's two minor children, and they got along ok. The Veteran's relationship with his girlfriend was pretty good with the Veteran stating that she was very patient with him. The Veteran also had 3 children who lived with their mothers in different states. The examiner indicated that the Veteran had not remained in contact with two of his children from one mother, but he spoke to his third child from a different mother on a weekly basis. Regarding his occupational history, the examiner indicated that the Veteran had worked at USPS for 3.5 years before he became injured on the job and left. He then worked for a hardware store for a couple of months before working in a position for supermarket for a couple of months, and he left both positions due to a back injury. The Veteran then began selling cars for a couple of months. However, the Veteran reported becoming depressed working in this position and feeling unable to work due to others taking prospects/sales when he was not there. He felt too much pressure and quit in July 2017. The Veteran then worked as a manager at a foodservice supplier. However, this job required physical labor, and the Veteran left when his back began to hurt. The Veteran subsequently worked at a call center for two weeks before leaving after he lost his temper with the manager. He then worked in CWT in a housekeeping role for 5 months until the program ended in March 2018. The Veteran additionally reported that he had been in school on a full-time basis since January 2018 for dental hygiene. The Veteran described being discouraged by his academic advisor due to size, grades, and his back injury. The date of the examination was his last day of classes, and the Veteran indicated he had passed some courses and failed others due to difficulty focusing. He informed the examiner he was considering switching to something more aligned to his job experience. He was interested in a position that was mentally stimulating in a cordial environment due to his past experience working in hostile environments. The examiner also addressed the Veteran's mental health history, noting that he denied having problems prior to service. He reported becoming depressed during service when he was injured and classified as non-deployable. The Veteran described feeling pushed aside and always watching. The Veteran had not gotten over this event since that time, and he began drinking to cope with his mood which led to mandated treatment in the military prior to his discharge. Since his discharge, the Veteran had consistently attended outpatient mental health treatment. He was currently meeting with a psychotherapist on a weekly basis and a psychiatrist every couple of months. In addition, he began a regimen of prescription medications that included bupropion and melatonin at his last psychiatric visit in March 2018. The examiner indicated that he was diagnosed at that time with major depressive disorder, recurrent; personality disorder unspecified with impulsive/aggressive features; anxiety disorder, unspecified; and history of attention-deficit/hyperactivity disorder (ADHD). The Veteran was currently depressed, and he only watched television with no interest in other activities. At times, he was able to force himself to take the children to the park if he was already out of the home. He experienced difficulty with motivation and low energy. The Veteran additionally had difficulty falling asleep, frequent night awakenings, and feelings of tiredness in the morning with difficulty waking. The Veteran also experienced an increased appetite with a weight gain of 30 pounds since March. He had stopped going to the gym due to his lack of energy. In addition, the Veteran had feelings of hopelessness/helplessness with the Veteran reporting that he could not "catch a break" and felt useless due to not being there mentally for the children. The Veteran informed the examiner that he had thoughts of being better off dead and feeling as though he was "being pulled closer to the edge." He reported that it was a constant battle and described himself as a hard worker, but either his back would give out or he would experience difficulty getting along with others and lose interest. He also experienced difficulty managing his temper, reporting that he would lose control; and this issue was the reason for his separation from his wife. He had increased irritability due to pain and trying to become neutral. To avoid acting out as a result of anger, the Veteran isolated most of the week. Whereas the May 2014 VA examiner reported that the Veteran was arrested for a DUI in 2012, the May 2018 examiner stated that he was arrested for a DUI in January 2014. The charges were reduced to reckless driving due to a police officer tampering with the evidence. The examiner also highlighted the Veteran's reported history of losing his temper, becoming angry, and acting out on his anger. He described one instance of driving recklessly when angry with his family in the car, and this behavior preceded his separation from his wife and children in 2014. He had also punched walls and engaged in fights. The examiner again noted that the Veteran currently isolated to attempt to manage his anger/irritability. The Veteran attended drug and alcohol counseling courses after 2014 in order to have his license returned. However, he denied having current problematic alcohol use. He reported occasionally drinking on a special occasion or socially when going out to eat. He typically drank a couple of glasses of wine 1 to 2 times a week. The examiner found that the Veteran's current symptoms included a depressed mood, anxiety, a flattened affect, and disturbances of motivation and mood. The Veteran additionally had a chronic sleep impairment and mild memory loss. He also experienced difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted that the Veteran presented early to the appointment, and he was well-groomed and casually dressed. The examiner stated that he had slowed ambulation and shifted in his seat during the appointment, appearing unconformable/in pain. He was cooperative and engageable with slightly slowed speech, a depressed mood, and a restricted affect. There were no auditory or visual hallucinations or apparent delusions. The Veteran had passive suicidal ideation with no current suicidal ideation, intent, or plan. He was also oriented times three. The Veteran was found capable of managing his financial affairs. The examiner separately addressed the change in diagnosis from the May 2014 examination, opining that the Veteran met the criteria for major depressive disorder with anxious distress that was an exacerbation of/a more accurate diagnosis of his service-connected adjustment disorder. The Veteran reported difficulty sustaining work due to both pain from his injuries and his mood/irritability. He also reported difficulty managing his temper, depression, and poor motivation. The Veteran reported that these symptoms affected his relationship with others, he did not enjoy socializing, and he isolated to manage his mood. The Veteran reported that although he was enrolled in school full-time, he failed 2 out of 4 classes due to difficulty concentrating. He had been enrolled in mental health treatment since his discharge and currently met with his psychotherapist on a weekly basis. He also reported regularly taking his prescribed bupropion and melatonin. During the August 2021 Board hearing, the Veteran described having problems with lack of focus and concentrating as well as issues forgetting many things such that he need to write notes to help him remember tasks the next day. The Veteran added that his mood swings remained the same, but he had changed how he dealt with things. Instead of lashing out at everyone, he isolated himself until he calmed down. The Veteran denied socializing much outside of work or having any friends. He also avoided crowds or general contact with people, explaining that he did not attend church and felt that others were looking at him in a certain way. In addition to mood swings, the Veteran had depressive moods with anxiety, reporting that he woke up in the middle of the night with symptoms of shortness of breath and sweating. Although the Veteran did not believe he had panic attacks, he did report having symptoms of hyperventilation when he was in an unfamiliar situation such as going to someone's home or away on vacation. The Veteran also reported hearing odd noises and seeing things that were not there. In addition, the Veteran indicated that he had suicidal ideation without a plan, stating that he experienced a "weird feeling" when he was up high as though he was being pulled towards a ledge. As a result, the Veteran tried to stay away from balconies or similar environments. The Veteran also confirmed that his current symptoms had essentially been the same since his discharge from service until the present with the only exception being improved behavior in terms of alcohol use. In discussing how his current symptoms were the same symptoms from which he was suffering in 2013, the Veteran pointed to his history of having a hard time staying employed prior to entering the CWT program. The Veteran explained that he would obtain a job and lose it within a couple of weeks as he would walk away without returning to work when someone angered him, knowing how he could be if he "let go." After reviewing the evidence of record, the Board finds that there is persuasive evidence to support a finding that it was factually ascertainable that the Veteran's psychiatric symptoms more nearly approximated the criteria for a 70 percent rating at least as early as August 5, 2013. The foregoing records reflect that the symptom of impaired impulse control, such as unprovoked irritability with periods of violence, that was noted during the May 22, 2018, VA examination has been present throughout the appeal period. Although this specific symptom was not documented in the May 2014 VA examination report, the examiner nevertheless stated in the diagnosis section of the report that the Veteran was found to have irritability and poor frustration tolerance. The examiner also noted the Veteran's history of several different post-service employment positions for relatively short periods. Although the Veteran denied experiencing difficulty with coworkers and/or supervisors during the examination, he clarified during the hearing that this employment history was related to his issues in dealing with anger towards others. A short time after the examination, the Veteran reported problems with mood swings and needing to isolate from others in the July 2015 NOD; and the May 2018 VA examination indicated that isolation was the Veteran's coping strategy for dealing with anger or irritability symptoms. The available VA treatment records from 2017 and 2018 reflect that the Veteran continued to address his issues with irritability and anger while attending appointments to treat his psychiatric disability. The March 2018 VA treatment record also indicated that this symptom was a longstanding issue as the Veteran had a history of throwing objects and punching walls, and the Veteran's separation from his previous wife was linked to his anger problems. In addition, the Veteran's Board hearing testimony reflects that this symptom as well as the Veteran's suicidal ideation had been present at least since 2013. The Board finds the Veteran credible as his report is largely consistent with the information in the VA treatment records. Although the Board has considered the records documenting his denials of suicidal ideation, the Board finds that these denials are explained by the report from the March 2018 VA treatment record that the Veteran's suicidal ideation was recurring rather than constantly present. The Veteran displayed some, but not all, of the symptoms listed as examples under the 70 percent rating criteria. Resolving all doubt in favor of the Veteran, the Board finds that the overall level of impairment during this period is best reflected by a disability rating of 70 percent. The Board therefore concludes that the evidence supports an earlier effective date of August 5, 2013, which is the date that service connection was established for the psychiatric disability. As previously indicated, this is earliest possible date from which the 70 percent disability rating can be made effective. Accordingly, an effective date of August 5, 2013, but no earlier, is warranted for the assignment of an initial 70 percent evaluation for service-connected major depressive disorder with anxious distress. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.