Citation Nr: A25035554 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240415-433061 DATE: April 17, 2025 ORDER Entitlement to an earlier effective date for the award of a 100 percent rating for acquired psychiatric disorders, diagnosed as adjustment disorder with depressed mood with mixed disturbance of emotions; and as somatic symptom disorder with predominant pain (also claimed as memory loss) prior to July 17, 2023, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to July 17, 2023, the Veteran's psychiatric disorder symptoms did not result in total occupational and social impairment. 2. The Veteran filed a VA Form 21-526EZ new claim application for a higher evaluation for the service-connected psychiatric disorder on December 6, 2022. CONCLUSION OF LAW The criteria for an effective date prior to July 17, 2023, for the award of a 100 percent rating for acquired psychiatric disorders have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.114, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1989 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2024 higher-level review decision of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). 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 August 2023 AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. Regarding the period on appeal, the Veteran was originally granted service connection for his acquired psychiatric disorder in a December 2021 rating decision, evaluated at 10 percent disabling effective August 19, 2021. The AOJ sent a notification letter of this decision on December 8, 2021. On December 6, 2022, the Veteran filed a claim via VA Form 21-526EZ that resulted in issuance of an August 2023 rating decision that increased the rating for his service connected acquired psychiatric disorder to 30 percent effective December 6, 2022, and to 100 percent effective July 17, 2021. Under the AMA, an appellant can preserve an effective date by continuously pursuing a claim. This is accomplished by filing an appropriate administrative review option to an AMA decision as specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision (or within the time specified in § 3.2500(f), as applicable to simultaneously contested claims), provided that any appeal to the United States Court of Appeals for Veterans Claims (Court) must be accepted as timely by that court. 38 C.F.R. § 3.2500 (h)(1). If a claim is continuously pursued it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). The available review options to establish continuous pursuit depend on the type of decision that was issued. If the AOJ decision is an initial or supplemental claim, an appellant may submit a (i) supplemental claim, (ii) higher-level review, or (iii) VA Form 10182, Board appeal to continuously pursue the appeal. If the decision is an AOJ decision on a higher-level review request, an appellant may submit a (i) supplemental claim or (ii) appeal to the Board to continuously pursue the appeal. The Board acknowledges the representative's argument that the December 2022 claim should be interpreted as a supplemental claim to the December 2021 rating decision under the AMA, thereby establishing continuous pursuit. While a supplemental claim needs to be filed on a form prescribed by VA, it does not have to be filed on a VA Form 20-0995. Chisholm v. Collins, No. 22-7028 (2025). However, the Board finds no legal basis to interpret the December 6, 2022 VA Form 21-526EZ as a supplemental claim. An increased rating claim filed on a VA Form 21-526EZ cannot establish continuous pursuit, regardless of whether it was received within one year of a prior decision, as it is not an administrative review option but instead a new claim for a higher rating based on worsening or increased severity. Generally, an increased rating may be assigned no earlier than the date the claim for an increase is received, unless it is factually ascertainable that the increase in disability occurred within the one-year period prior to the filing of a claim. 38 C.F.R. § 3.400(o)(2). If the worsening occurred more than one year prior to the date of the claim, the effective date can be no earlier than the date of the claim. Id. Accordingly, the Board's review of this claim includes consideration of whether an increase in disability was factually ascertainable within the one year prior to December 6, 2022. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Entitlement to an earlier effective date for the award of a 100 percent rating for acquired psychiatric disorders The Veteran seeks an effective date of August 19, 2021 for the award of a 100 percent rating for his service connected acquired psychiatric disorders. See April 2024 VA Form 10182. His psychiatric disorder(s) have been rated at 10 percent disabling from August 19, 2021 to December 5, 2022; at 30 percent disabling from December 6, 2022 to July 16, 2023; and are currently rated at 100 percent disabling from July 17, 2023, under Diagnostic Code 9440. As discussed above, the period on appeal begins one year prior to December 6, 2022. However, for the reasons set forth below, the Board finds the claim must be denied. Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. §§ 4.1, 4.2, 4.41. However, where an increase in the disability rating, rather than the propriety of the initial rating, is at issue, the present level of disability is of primary importance, and past medical reports should not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Regardless of whether an appeal stems from disagreement with the initial rating assigned following an award of service connection or from disagreement with the rating assigned following a claim for increase, separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). Under the General Rating Formula for Mental Disorders (General Formula), applicable here, 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 General Formula assigns a noncompensable rating 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. Turning to the relevant evidence, the Veteran was afforded a VA mental disorders examination in September 2021. The examiner diagnosed the Veteran with adjustment disorder with depressed mood. For VA rating purposes, the examiner noted the Veteran's symptom as depressed mood. The examiner observed the Veteran's behavior and noted he interacted in a calm, pleasant manner. His mood/affect was normal and appropriate to the situation. He did not appear unusually anxious. The Veteran's speech was normal and easily understood. There were no signs of psychosis or unusual behavior, and the Veteran was appropriately dressed, with good grooming and hygiene. See September 2021 Mental Disorders Disability Benefits Questionnaire (DBQ). Regarding social impairment, the Veteran reported having a "good" relationship with his wife of 30 years. He also has "good" relationships with his two adult children. He resides in Florida with his wife and mother who has Alzheimer's Disease. He described his hobbies and activities as "playing golf at least once a week" and work. Regarding occupational impairment, the Veteran reported that he served in the Navy from October 1989 to June 2006 and retired. Since then, he has worked full-time at a hospital for 14 years as the electrical supervisor. He reported no significant occupational problems, but he often must delegate tasks to his crew as he is physically unable to do the tasks. Overall, the examiner found that the Veteran's mental health condition has been formally diagnosed but his symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. Id. The Veteran was afforded another VA mental disorders examination in December 2022. The examiner confirmed a diagnosis of adjustment disorder with depressed mood; but did not find a separate diagnosis of memory loss. For VA rating purposes, the examiner noted the Veteran's adjustment disorder with depressed mood symptoms as depressed mood and mild memory loss. The examiner observed the Veteran's behavior as alert and fully oriented. His speech was normal in rate, tone, and syntax. His thought content and process were unremarkable for observable pathology. His mood was euthymic with full and reactive affect. There was no observable responsiveness to internal stimuli, and no observable impairment in intellect, attention, concentration, or memory. He was well-groomed and cooperative. The Veteran denied any history of suicidal or homicidal ideation. He was not taking any psychotropic medication. See December 2022 Mental Health DBQ. Regarding social impairment, the Veteran reported that he has been married for the past 31 years and "it's going very good." He reported that he has two adult children and his "relationships with them are perfect." He also reported that his relationships with extended family are "pretty good and normal," stating that he "get[s] along well with the people [he] know[s] outside of family." Regarding occupational impairment, the Veteran reported that he has been unemployed for the past year. Prior to that, he was employed full-time as an electrical supervisor for 14 years and stated that he left the job because he couldn't get around well anymore "because of arthritis and joint pain and numbness in [his] hands." Overall, the examiner found that the Veteran's psychiatric disorder was manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Id. Thereafter, in July 2023 the Veteran underwent another VA examination for mental disorders. The examiner diagnosed the Veteran with adjustment disorder with mixed disturbance of emotions (anxiety and depressed mood) with conduct, chronic; and also diagnosed him with somatic symptom disorder with predominant pain, persistent, severe. For VA rating purposes, the examiner noted the Veteran's mental health symptoms as depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, and disorientation to time or place. The examiner could not differentiate what symptoms are attributable to each diagnosis. He opined that both diagnoses contribute to the Veteran's mental health issues and are additive and cumulative, as well as interact to acerbate his mental health problems. The examiner found that there is a comorbid relationship between the two mental health diagnoses. See July 2023 Mental Health DBQ. The July 2023 examiner observed the Veteran's behavior as open and compliant, and noted the following: On a scale of 1-10 with ten being high: depressed - 8, constant, been going on since stopped working 1.5 years ago; triggered by inability to work, pain in knees/ankles and hands, knees service connected, worries about, gets anxious about his ability to perform; anxiety - 5[,] fluctuates between 3-5, triggered by having to do things that he cannot do; Suspiciousness - trust no one, things bad things [sic] are going to happen; Sleep - 3-6 hours, disruptive, nightmares, on CPAP, sleep apnea contributes to his sleep issues, also acerbates his anxiety and depressed mood; memory - started noticing in the last year, mostly [short term]; Flat affect - daily, last most of the day, pulled out of by knowing things just have to get done; motivation and mood -hard to get motivated to do errands he has to get done. Regarding social impairment, the Veteran reported he has stayed married since 1991 and is close with his two kids. He reported that he went to church, played intramural sports, hangs out with friends, and has stayed in touch with family as much as possible. Occupationally, the Veteran reported that the last time he worked was January 2022. The examiner ultimately concluded that the Veteran's level of occupational and social impairment resulted in deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Id. The Board concludes that prior to July 17, 2023, the objective medical evidence does not support a finding that the Veteran's psychiatric disorder symptoms resulted in total occupational and social impairment. In finding an earlier effective date for a rating of 100 percent is not warranted, the Board notes that an April 2023 private medical record indicates the Veteran "reports memory lapses or changes," however the Board finds this reported symptom does not rise to the level of total occupational and social impairment due to symptoms such as memory loss for names of close relatives, own occupation, or own name as contemplated by the 100 percent rating. In short, there is no basis to assign an effective date earlier than July 17, 2023, for the award of a 100 percent rating for acquired psychiatric disorders. As the evidence of record persuasively weighs against the claim, 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 (Fed. Cir. 2021). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Entitlement to a TDIU is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F. 3d 1378 (Fed. Cir. 2001). In the present case, prior to the rating decision on appeal, in the December 2022 VA examination, the examiner noted that the Veteran was no longer working and that he exhibited occupational impairment that decreased work efficiency and ability to perform occupational tasks during periods of significant stress. A review of the record shows that the Veteran has not been provided the specific notice required in response to a claim for a TDIU, to include a request to submit a VA Form 21-8940. Therefore, the Board finds that further action is required of the originating agency before the Board decides the TDIU issue. The matter is REMANDED for the following action: Provide the Veteran with notice of how to substantiate a claim for entitlement to a TDIU. Additionally, provide him with VA Form ? 21-8940 in connection with the inferred claim for entitlement to a TDIU, and request that he supply the requisite information. S. Merrick Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Hampl, Samantha 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.