Citation Nr: 22016453 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 14-36 911 DATE: March 22, 2022 ORDER Entitlement to an effective date earlier than August 28, 2000, for the 100 percent rating assigned to the service-connected depressive reaction with posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of entitlement to service connection for pancreatitis, including as secondary to service-connected diabetes mellitus, type 2, is remanded. FINDING OF FACT After the July 1994 unappealed rating decision, there was no formal or informal claim for an increased rating for psychiatric disability prior to August 28, 2000; it is not factually ascertainable that an increase in disability occurred within the year preceding August 28, 2000. CONCLUSION OF LAW The criteria for an effective date prior to August 28, 2000, for the grant of a 100 percent rating for psychiatric disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1967 to January 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2010 and December 2010 rating decisions issued by Department of Veterans Affairs (VA) Regional Offices (ROs), which denied the claims. This case was before the Board in September 2018. The Board denied the Veteran's claim for entitlement to the following: (1) an effective date earlier than August 28, 2000, for the 100 percent rating assigned to the service-connected depressive reaction with PTSD, (2) an effective date earlier than June 6, 2007, for the grant of entitlement to special monthly compensation (SMC) based on loss of use of both hands, and (3) an effective date earlier than June 6, 2007, for the grant of entitlement to SMC based on aid and attendance. The Board remanded the Veteran's service connection claim for pancreatitis. The Veteran appealed the denial to the Court of Appeals for Veterans Claims (Court), which in February 2020, on the basis of a Joint Motion for Partial Remand (February 2020 Joint Motion), vacated the denials and remanded the claims to the Board for further consideration. This matter was again before the Board in December 2020, when the Board again denied the claims of entitlement to earlier effective dates for the PTSD rating and the SMC awards. The Board remanded the issue of entitlement to service connection for pancreatitis. The Veteran appealed the denial to the Court, which in August 2021, on the basis of a Joint Motion for Partial Remand (August 2021 Joint Motion), vacated the denial of an earlier effective date for PTSD and remanded that issue to the Board for further consideration. 1. Entitlement to an effective date earlier than August 28, 2000, for the 100 percent rating assigned to the service-connected depressive reaction with PTSD is denied. The Veteran believes he is entitled to an earlier effective date prior to August 28, 2000, for the award of a 100 percent rating for his psychiatric disorder. The Veteran's representative contends that this claim is supported by a June 1982 clinical evaluation that reported the Veteran was suffering from a severe mental disorder. The effective date for an increased rating is to be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o)(2). Determining an appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). The Board must review all communications in the record that may be interpreted as formal or informal claims and consider whether such communications, in the context of the entire record, reasonably raise a claim for benefits. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Moreover, in identifying the benefit sought, the United States Court of Appeals for Veterans Claims has stated that although the RO has no duty to read the mind of the claimant, the RO should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the RO must consider claims that may be reasonably encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or the Secretary obtains in support of the claim. Id. A February 1971 rating decision granted service connection for phobic neurosis and assigned a noncompensable rating from January 1969. A January 1972 rating decision increased the disability rating to 30 percent from April 1971 and recharacterized the disability as depressive reaction. A June 1973 rating decision denied entitlement to a total disability rating based on individual unemployability because the Veteran was employed on a full-time basis. An August 1982 rating decision denied an increased rating for depressive reaction. An April 1983 rating decision denied an increased rating for depressive reaction. A July 1994 rating decision denied an increased rating for depressive reaction. In pertinent part, the July 1994 rating decision was unappealed by the Veteran and is final. Between the July 1994 final decision and August 28, 2000, there were no formal or informal claims for an increased rating for the Veteran's service-connected psychiatric disability. On August 28, 2000, the claim for an increased rating was received. A January 2001 rating decision denied an increased rating for depressive reaction. An October 2001 rating decision then included PTSD as part of the Veteran's psychiatric disability and increased the rating to 100 percent effective August 28, 2000, the date the claim was received for an increased rating. There was no evidence of treatment showing an increase in severity within the year preceding the August 28, 2000, effective date. A May 18, 1999, VA psychology note reported that the Veteran denied suicidal/homicidal thoughts or plan. A May 27, 1999, VA psychology note reported that the Veteran related having suicidal thoughts on and off for several years. Although he had thoughts of hurting himself, he had no plan and stated that the thoughts were fleeting. He denied being actively suicidal. A May 2000 VA psychology note reported that Veteran was depressed, but not actively suicidal or homicidal. A November 2000 VA mental disorders examination report documented the Veteran's report of having flashbacks of bodies falling on him between 1968 and 1971 when he received long-term psychiatric care at Fort Sam Houston Hospital. He reported that, at that time, he tried to cut off his legs to stop the leg pain he was experiencing. Since then, he has at times been suicidal, but never made any plans or had any intent. An August 2001 VA examination report documented the Veteran's report that he tried to commit suicide on two occasions, once two years ago and prior to that three years ago. He stated that his wife found him on both occasions and that he was not hospitalized. A November 2010 VA psychology note reported that the Veteran denied experiencing any current or past suicidal or homicidal ideation. A November 2011 VA primary care note documented the Veteran's report that he has never had a suicide attempt. The February 2020 Joint Motion for Partial Remand found that the September 2018 Board decision failed to consider the August 2001 VA examination report in which the Veteran reported "constant suicidal ideations" and "tried to commit suicide on two occasions, once two years ago and prior to that[,] three years ago." The Board finds the Veteran's statements made during the August 2001 VA examination regarding suicide attempts lack the credibility necessary to afford them significant probative value, as his statements have been inconsistent with his other statements. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (noting that credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements). In May 2000, he reported he was depressed, but not actively suicidal or homicidal. In November 2000, the Veteran reported that he tried to cut off his legs between 1968 and 1971 but had never made any plans or had suicidal intent since that time. In November 2010, he denied experiencing any current or past suicidal ideation. In November 2011, he reported that he had never had a suicide attempt. Leaving aside for now any question of the history of the Veteran's suicidal ideation, his August 2001 report of suicide attempts occurring in approximately 1998 and 1999 are contradicted by his other statements. The Board's now-vacated December 2020 decision denied entitlement to an effective date prior to August 28, 2000, on the basis of the above-discussed evidence. The Board's now-vacated decision found that (1) there was no formal or informal claim for an increased rating prior to August 28, 2000, and (2) it is not factually ascertainable that the Veteran's psychiatric disability increased in severity to meet the criteria for a 100 percent rating within the year preceding August 28, 2000. The August 2021 Joint Motion raises no concerns pertaining to the finding that there was no formal or informal claim for an increased rating prior to August 28, 2000. Rather, the concern presented by the August 2021 Joint Motion appears to pertain to the question of whether it is factually ascertainable that the Veteran's psychiatric disability increased in severity to meet the criteria for a 100 percent rating within the year preceding August 28, 2000, as the May 1999 record highlighted in the JMR was addressed in the section of the Board's analysis that addressed the one year period prior to the August 28, 2000 claim. The August 2021 Joint Motion discussed concern that the Board "noted its reliance on a May 27, 1999, VA psychology note ...." The August 2021 Joint Motion explains: The Board noted that the May 1999 VA psychology note indicated that Appellant reported having suicidal thoughts on and off for several years. Following this reiteration of the May 1999 notes findings, the Board concluded that "[a]lthough [Appellant] had thoughts of hurting himself, he had no plan and related that the thoughts were fleeting" and that Appellant had "denied being actively suicidal." ... [T]he Board erred by failing to adequately address evidence of suicidal ideation. In Bankhead, this Court explained that the Board errs when it requires "evidence of more than thought or thoughts to establish the symptoms of suicidal ideation" and by "grant[ing] risk of harm onto the symptom of suicidal ideation." .... The Board here seemingly discounted evidence of suicidal ideation because evidence did not show that Appellant intended to act on such thoughts. The August 2021 Joint Motion instructs that the Board must "more fully address whether a higher rating is warranted." In this latest Board review of the case, following the August 2021 Joint Motion, the Board does not discount the May 1999 evidence of suicidal ideation. However, the May 1999 VA psychology note does not provide a basis for an award of an earlier effective date for the 100 percent rating for PTSD. Indeed, a full acceptance that the Veteran was experiencing suicidal ideation in May 1999 does not support the Veteran's claim because it would tend to show the presence of a PTSD symptom more than one year prior to the August 2000 claim. While a claimant generally benefits from showing greater degrees and additional features of disability in a claim for an increased rating, this appeal seeking an earlier effective date for an awarded rating works differently: a showing of greater degrees of disability more than one year prior to the August 2000 claim works against the Veteran's theory of entitlement to an earlier effective date for increase (within the one year prior to the August 2000 claim) in this case. In order to demonstrate entitlement to an effective date prior to the August 2000 claim in this case, the Veteran must show that the disability worsened on a factually ascertainable date within a year prior to the claim. That burden upon the Veteran is greater when the level of severity of disability shown before that one-year period is greater; this is because the Veteran must show that the more recent impairment exceeded the prior levels (to show the occurrence of worsening within the pertinent period). The Joint Motion expresses concern that the Board discounted evidence of suicidal ideation in May 1999 to the Veteran's detriment, but this is not the case. Finding the presence of suicidal ideation in May 1999 does not provide support for the Veteran's claim of entitlement to an earlier effective date where, as in this case, the only available theory of entitlement requires showing a worsening of disability occurring at a factually ascertainable time from August 1999 to August 2000. The Board accepts that the May 1999 VA psychology note is evidence showing the presence of suicidal ideation, as the Joint Motion indicates, and thus the Board's analysis conforms to the discussion of the August 2021 Joint Motion; however, this results in no improvement of the Veteran's theory of entitlement to an earlier effective date. The prior, February 2020, Joint Motion explains that the Board must "consider an August 2001 VA examination report where Appellant reported 'constant suicidal ideations' and 'tried to commit suicide on two occasions, once two years ago and prior to that[,] three years ago." The Board notes that the August 2001 VA examination occurred during the period for which the Veteran has already been awarded a 100 percent rating; the August 2001 VA examination report could only provide a basis for an award of an earlier effective date for the 100 percent rating by showing a factually ascertainable date of increase in disability within a year prior to the August 28, 2000, claim. The August 2001 VA examination report indicates the following: [The Veteran] states that one o[f] the things he has had to fight all of the years since he has returned from Vietnam, is constant suicidal ideations. He has tried to commit suicide on two occasions, once two years ago and prior to that three years ago.... He states that he has had to fight with himself through the years to not kill himself.... The Board recognizes that this information depicts serious and substantial impairment. The Board recognizes that this impairment includes, by the Veteran's own account, suicidal ideation for many years prior August 2000 claim date. The Board sympathizes with the Veteran regarding his experience. However, the Board is not authorized to award an effective date prior to the date of receipt of the claim unless the specific conditions for such an assignment are met. In particular, an effective date prior to the date of claim can be assigned if the evidence shows that the Veteran filed his claim within one year of a factually ascertainable date of increased disability; this requirement is not satisfied merely by a showing that that the disability had certain serious symptoms at any time prior to the date of the claim. The contents of the August 2001 VA examination report highlighted by the February 2020 Joint Motion in this case indicate that the Veteran experienced "constant suicidal ideations" during "all of the years since he has returned from Vietnam." This clearly does not indicate a factually ascertainable increase within a year prior to the August 2000 claim. The August 2001 report's reference to a suicide attempt "three years ago," or in 1998, also clearly does not indicate a factually ascertainable increase within a year prior to the August 2000 claim. The August 2001 report's reference to a suicide attempt "two years ago," or some approximated time around August 1999, pertains to an event that may possibly have occurred within a year prior to the August 2000 claim. The approximate nature of the timing information makes it unclear when the event occurred, but the Board notes that the 1999 date corresponding to "two years" prior to the August 20, 2001, VA examination was more than one year prior to the August 28, 2000, date of claim. Even allowing for a range of approximation of the indicated timing of the 1999 event, the information does not allow the Board to identify a factually ascertainable date of increase within a year prior to the claim. Rather, the information indicates that the Veteran had a long-standing struggle with suicidal ideation dating back decades, including attempted suicide in approximately 1998 and 1999, prior to filing a claim seeking an increased rating in August 2000. Thus, even if the Veteran accepts the Veteran's August 2001 account of his history (disregarding the other inconsistent / contradictory indications discussed above), this case nevertheless lacks a valid basis for assignment of an effective date prior to the August 2000 claim. The effective date for an increased rating is to be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date. Even with attention to the information highlighted by the February 2020 Joint Motion, the Board finds that this case presents no factually ascertainable date of increase in disability within the one-year period prior to the Veteran's August 2000 claim. In conclusion, after the July 1994 unappealed rating decision, there was no formal or informal claim for an increased rating prior to August 28, 2000. Nor is there any evidence showing an increase in severity within the year preceding August 28, 2000, thus, it is not factually ascertainable that the Veteran's psychiatric disability was 100 percent disabling prior to August 28, 2000. Accordingly, an earlier effective date prior to August 28, 2000 is denied. REASONS FOR REMAND 1. The issue of entitlement to service connection for pancreatitis, including as secondary to service-connected diabetes mellitus, type 2, is remanded. The February 2021 VA examination report with medical opinion developed to satisfy the Board's remand directives presents a rationale that requires supplementation in order to support appellate review of the claim of entitlement to service connection for pancreatitis. The February 2021 VA medical opinion presents a discussion of the author's analytical rationale that reveals the examiner's understanding that: "There is no causal medical evidence that shows that diabetes mellitus II causes acute pancreatitis." In November 2021, the Veteran's representative specifically disputed the opinion in this regard, and directs attention to "medical literature which reports .... [c]ompared to people without diabetes, people with diabetes have a 1.74-fold increased risk of acute pancreatitis, and 1.4-fold increased risk for chronic pancreatitis." The information highlighted by the Veteran's representative appears to come from a publicly available medical resource (https://arielmedicine.com/how-does-diabetes-increase-risk-for-pancreatitis/). This resource cites multiple studies and articles, including a recent study published in the medical journal Pancreatology, "the official journal of the International Association of Pancreatology (IAP), the European Pancreatic Club (EPC) and several national societies and study groups around the world." See https://www.sciencedirect.com/journal/pancreatology. The original source, providing the medical information the Veteran's representative brings to the Board's attention, is presented in a publicly available June 2020 medical journal article that concludes: "These results suggest that diabetes patients are at an increased risk of acute pancreatitis." Dagfinn Aune et al., Diabetes mellitus and the risk of pancreatitis: A systematic review and meta-analysis of cohort studies, 20 Pancreatology 4 (2020) [https://www.sciencedirect.com/science/article/abs/pii/S1424390320301277?via%3Dihub (last retrieved in March 2022)]. Thus, the Veteran's representative has brought to the Board's attention recently emerging medical information published in a medical journal that is directly pertinent to this claim and tends to support the Veteran's theory of entitlement; it appears that the February 2021 VA medical opinion was prepared without awareness of this recent emerging information, and the pertinent information was not addressed. The February 2021 VA medical opinion makes clear that the author was aware of "no causal medical evidence that shows that diabetes mellitus II causes acute pancreatitis," and the analytical rationale for the opinion relies upon the absence of such evidence. The VA medical opinion does not present any explanation or indication that accounts for the June 2020 publication of pertinent supportive medical literature the Veteran's representative has brought to the Board's attention. Accordingly, the Board finds that a remand is necessary for a supplemental medical opinion to inform appellate review of this claim. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his pancreatitis. 2. After the record is determined to be complete, please forward the Veteran's claims file to the clinician who prepared the February 2021 opinion (or another qualified provider, if the prior opinion's author is unavailable) for preparation of a supplemental opinion. The opinion provider is requested to supplement that opinion by addressing the medical information highlighted by the Veteran's representative in November 2021 indicating "[c]ompared to people without diabetes, people with diabetes have a 1.74-fold increased risk of acute pancreatitis, and 1.4-fold increased risk for chronic pancreatitis." The original source, providing the medical information the Veteran's representative brings to the Board's attention, is presented in a publicly available June 2020 medical journal article that concludes: "These results suggest that diabetes patients are at an increased risk of acute pancreatitis." Dagfinn Aune et al., Diabetes mellitus and the risk of pancreatitis: A systematic review and meta-analysis of cohort studies, 20 Pancreatology 4 (2020) [https://www.sciencedirect.com/science/article/abs/pii/S1424390320301277?via%3Dihub (last retrieved in March 2022)]. This recent medical literature should be considered and addressed in the context of explaining: (a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pancreatitis has been caused by service-connected diabetes mellitus, type 2; and (b) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pancreatitis has been aggravated by (undergone any increase in severity due to) service-connected diabetes mellitus, type 2. If the February 2021 opinion provider is not available, following a review of the record, another opinion provider should provide an opinion, with supporting rationale, as to: (a) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pancreatitis has been caused by service-connected diabetes mellitus, type 2; and (b) whether it is at least as likely as not (50 percent or greater probability) that the Veteran's pancreatitis has been aggravated by (undergone any increase in severity due to) service-connected diabetes mellitus, type 2. In providing the rationale for this opinion, the clinician should consider and address the relevant evidence of record and the above-identified June 2020 article from the medical journal Pancreatology. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Barone, Alexander 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.