Citation Nr: A25035298 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240412-433045 DATE: April 16, 2025 ORDER Entitlement to an earlier effective date for grant of service connection for major depressive disorder is dismissed. Entitlement to a compensable disability rating for right knee strain with knee instability is denied. Entitlement to a compensable disability rating for left knee strain with knee instability is denied. Entitlement to a disability rating in excess of 50 percent for major depressive disorder is denied. Entitlement to a total disability based upon individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. In a November 2022 rating decision, the Regional Office (RO) granted service connection for a major depressive disorder disability, effective February 12, 2021; the December 2023 claim for an earlier effective date for grant of service connection for major depressive disorder is an impermissible freestanding claim. 2. The Veteran's right knee strain with instability is not manifest by history of ligament tear or diagnosed patellofemoral complex resulting in instability. 3. The Veteran's left knee strain with instability is not manifest by history of ligament tear or diagnosed patellofemoral complex resulting in instability. 4. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. 5. The Veteran was not unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 12, 2021 for grant of service connection for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155 (a), 3.400, 20.302; Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). 2. The criteria for a compensable disability rating for right knee strain with instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for a compensable disability rating for left knee strain with instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a disability rating in excess of 50 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 5. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from April 1984 to April 2004. The rating decision on appeal was issued in April 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the April 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Earlier Effective Date 1. Entitlement to an earlier effective date for grant of service connection for major depressive disorder Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110 (a) (2012). If a claim for compensation is received within one year after separation from service, the effective date for an award of service connection is the day following separation from active service. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (b)(2) (2018). Generally, the effective date for an award of increased compensation will be the later of the date of claim or the date entitlement arose. 38 C.F.R. § 3.400 (o)(1) (2018). However, the effective date of an award of increased compensation may also be the earliest date as of which it is ascertainable that an increase in disability had occurred if an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110 (b)(3) (2012); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Otherwise, the effective date will be the date of receipt of the claim. 38 C.F.R. § 3.400 (o)(2). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). In cases where a prior decision assigning an effective date for an award of service connection or an increased rating has become final, the method for overcoming the finality of that decision is a request for revision based on clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a); see Flash v. Brown, 8 Vet. App. 332, 340 (1995). Otherwise, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed decision. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). In other words, if the claimant disagrees with the effective date assigned in a given rating action, it must be timely appealed; if not, an earlier effective date is available only if the claimant pleads clear and unmistakable error (CUE) in such rating action. A claim for CUE entails special pleadings and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown,6 Vet. App. 40 at 44 (1993); Duran v. Brown,7 Vet. App. 216, 223 (1994). The record shows that in a November 2022 rating decision the RO granted service connection for major depressive disorder and generalized anxiety disorder. The Veteran did not request reconsideration of this decision, he did not appeal the decision to the Board, and no new and material evidence was received within a year of the decision. Thus, the November 2022 rating decision became final. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. The Board cannot adjudicate this earlier effective date claim as it represents a freestanding claim for earlier effective date, which is not permitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The claim for earlier effective date is therefore dismissed as a matter of law. Increased Rating 1. Entitlement to a compensable disability rating for right knee strain and knee instability 2. Entitlement to a compensable disability rating for left knee strain and knee instability The Veteran seeks a higher rating for bilateral knee strain with instability. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A maximum 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The Veteran was afforded a VA examination in January 2024. The Veteran reported bilateral knee instability. He reported that his knees would give out at times causing him to nearly fall. No medication treatment was indicated. Initial ranges of motion were noted as: all normal for both knees. Passive range of motion was the same as active range of motion. No evidence of pain was noted. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. With repeated use over time, the examiner found the procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limited functional ability. No flare-ups were reported. No muscle atrophy or ankylosis of the knee were noted. The examiner assessed recurrent subluxation or persistent instability. However, the examiner found there was no history of ligament tear (sprain) or patellar instability for either knee. The Veteran did not require a prescription by a medical provider for ambulation. The Board finds that the evidence of record persuasively weighs against a compensable disability rating for left or right knee strain with instability. A compensable rating under the amended DC 5257 requires sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, or a diagnosed condition involving the patellofemoral complex with recurrent instability, and the Veteran has none of these. The Board has carefully considered the Veteran's reports about instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that while the Veteran reports subjective instability he has not experienced a ligament tear, or a diagnosed condition involving the patellofemoral complex. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable disability rating for left or right knee strain with instability. As the evidence of record persuasively weighs against a compensable disability rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021). 3. Entitlement to a disability rating in excess of 50 percent for major depressive disorder The Veteran seeks a higher rating for major depressive disorder. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Veteran was afforded a VA examination in January 2024. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was neatly groomer, maintained eye contact, and was fully oriented. The examiner assessed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. The January 2024 VA examination indicate that the Veteran had good grooming, grossly intact memory, and organized and coherent thoughts. During the January 2024 VA examination, the Veteran reported that he drank a six-pack of beer a day since discharge. The Veteran did not experience symptoms consistent with those noted in the criteria for a 70 percent rating, such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships. The Veteran's symptoms (depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective relationships) were either contemplated by or more consistent with a 50 percent rating. In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating. The criteria for a 70 percent or higher rating are not met and the appeal must be denied. 4. Entitlement to a total disability based upon individual unemployability (TDIU) The Veteran seeks a TDIU. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more 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. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to 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. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: major depressive disorder (rated 50 percent, from February 12, 2021); degenerative disc disease (rated 20 percent from December 2005 to July 2023, and 40 percent from July 2023); left lower extremity radiculopathy (rated 10 percent from November 2021 to July 2023; and 20 percent from July 2023); onychomycosis (rated 10 percent from April 2019); left forefoot degenerative joint disease (rated 10 percent from May 2004); flexion deformity of right 4th and 5th toes (rated 10 percent from November 2021); right knee strain and instability (rated 0 percent from July 2023); and left knee strain and instability (rated 0 percent from July 2023). Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). The Veteran was afforded a VA examination for skin diseases in May 2019. The Veteran reported chronic itching, scaly skin, and burning on his bilateral feet. He reported using over-the-counter lotions on really bad days. The examiner found the Veteran's skin condition did not impact his ability to work. The Veteran was afforded a VA examination for lumbar spine in October 2023. The Veteran reported progressive back pain and difficulty moving heavy items. The examiner found the Veteran's radiculopathy condition impacted his ability to work. Specifically, the examiner determined that the Veteran had lost 0 to 1 week of work time over the previous 12 months. Due to degenerative disc disease of the lumbar spine and left and right leg radiculopathy the Veteran had difficulty with pain and often had to sit down to relieve the pain. The Veteran was afforded a VA examination for the peripheral nerves in October 2023. The Veteran reported numbness and tingling to both feet and lower legs. The examiner found the Veteran's radiculopathy condition impacted his ability to work. Specifically, the examiner determined that the Veteran had lost 0 to 1 week of work time over the previous 12 months. Due to radiculopathy, the Veteran reported difficulty walking and that he stumbled often. The Veteran was afforded a VA examination for foot conditions in October 2023. The Veteran reported progressive flat foot and pain in his feet. He reported he used arch supports. The examiner found the Veteran's foot conditions impacted his ability to work. Specifically, the examiner determined that the Veteran had lost 0 to 1 week of work time over the previous 12 months, and needed arch supports in his shoes to prevent pain in his feet. The Veteran was afforded a VA examination for mental disorders in January 2024. The Veteran was neatly dressed, maintained eye contact, was fully oriented, and had organized and coherent thoughts. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Overall, the examiner assessed occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner indicated that the Veteran experienced depression and sleep disturbance that would impact motivation, energy level, and drive. He could have difficulties interacting with supervisors, coworkers, and the public. He might feel unmotivated and tend to socially isolate. Due to sleep issues, he may experience absenteeism and tardiness issues. He might also display irritability and be short-tempered. The Veteran was afforded a VA examination for knee and lower leg in January 2024. The Veteran reported knee instability. He related that his knees would give out causing him to nearly fall. The examiner found the Veteran's knee conditions impacted his ability to work. Specifically, that the Veteran's knees would give out on him while going down elevation such as down hills or stairs. The Veteran was afforded a VA examination for lumbar spine in January 2024. The Veteran reported back pain and flare-ups. He reported he was unable to sit, stand, or walk for prolonged periods of time without significant pain. He also related that he was unable to lift heavy objects without pain. The examiner found the Veteran's knee conditions impacted his ability to work. The examiner opined that the Veteran was unable to sit, stand or walk for prolonged periods of time without significant pain. He was also unable to lift heavy objects without pain. For the reasons that follow, the Board finds that a TDIU is not warranted. The Veteran reported that he worked as an administrative officer for a VA hospital through May 2023. He indicated he had 4 years of college training. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of lumbar spine degenerative disc disease, radiculopathy, bilateral knee, and right foot disabilities. The January 2024 VA examinations reflect that the Veteran would have difficulty with prolonged standing, walking, or sitting. He would also have difficulty lifting and carrying heavy objects, and difficulty climbing stairs or across uneven ground. VA examiners also found that the Veteran would lose up to 1 week of work each year due to his physical disabilities. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of major depressive disorder disability. The January 2024 VA examiner indicated that the Veteran experienced depression and sleep disturbance that would impact motivation, energy level, and drive. He could have difficulties interacting with supervisors, coworkers, and the public. He might feel unmotivated and tend to socially isolate. Due to sleep issues, he may experience absenteeism and tardiness issues. He might also display irritability and be short-tempered. (Continued on the next page) ? Given the forgoing, the Veteran's service-connected disabilities do not preclude the ability to secure and follow a substantially gainful occupation consistent with the Veteran's education, skills, training, and work history. The Veteran retains the ability to work in positions that allow him to change positions, lift medium objects, and avoid stairs or uneven surfaces. The Veteran also would work best in environments with limited public and coworker interaction. The Veteran would be able to perform office work similar to his past work as an administrative officer for a VA hospital. Accordingly, a TDIU is not warranted. M. MILLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen 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.