Citation Nr: 25007131 Decision Date: 05/27/25 Archive Date: 05/27/25 DOCKET NO. 17-62 825 DATE: May 27, 2025 ORDER Entitlement to an effective date prior to October 31, 2015 for the award of a 50 percent rating for adjustment disorder with mood disorder (hereafter adjustment disorder) is denied. REMANDED Entitlement to an effective date prior to October 31, 2015 for the award of a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an effective date prior to October 31, 2015 for the award of basic eligibility for Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. The Veteran was granted service connection for his adjustment disorder with an initial rating of 30 percent, effective March 21, 2014, in a November 2014 rating decision. 2. New and material evidence as to the propriety of the Veteran's rating for his adjustment disorder was constructively received within one year of the issuance of the November 2014 rating decision. 3. Between March 21, 2014 and October 31, 2015, the Veteran's adjustment disorder was manifested by symptomatology productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, irritability, chronic sleep impairment, disturbances of motivation and mood, and mild memory loss. CONCLUSIONS OF LAW 1. The November 2014 rating decision is not final regarding the rating assigned to the Veteran's adjustment disorder. 38 C.F.R. § 3.156(b); Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). 2. The criteria for an effective date prior to October 31, 2015 for the award of a 50 percent rating for adjustment disorder are not met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400, 4.1, 4.3, 4.130, Diagnostic Code (DC) 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who served on active duty in the United States Army from July 1987 to November 1987, April 1989 to April 1993, and from March 2003 to August 2004, died in March 2024. The appellant is his surviving spouse. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2017 and October 2022 rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). Previously, the Board granted an effective date of October 31, 2015, but not earlier, for the awards of an increased rating of 50 percent for the Veteran's adjustment disorder, entitlement to a TDIU, and entitlement to DEA. See October 2022 Board Decision. The Veteran appealed the October 2022 Board decision's denial of an effective date prior to October 31, 2015 for the awards of an increased rating of 50 percent for the Veteran's adjustment disorder, entitlement to a TDIU, and entitlement to DEA to the United States Court of Appeals for Veterans Claims (Court). Unfortunately, the Veteran died during the pendency of the Court appeal. A June 2024 Court Order vacated the October 2022 Board decision and dismissed the appeal based on the death of the Veteran. Upon return to the Board, the Board dismissed the appeal based on the death of the Veteran in October 2024. In May 2024, the appellant formally filed a claim VA Form 21-0847 Request for Substitution of Claimant Upon Death of Claimant. The AOJ subsequently granted substitution in the October 2024 correspondence. 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. Furthermore, the Veteran presented testimony to the Board in September 2021, and the appellant testified before the Board in January 2025. These hearings were conducted by two different Veterans Law Judges (VLJs). The law requires that each VLJ who took testimony regarding this appeal to participate in this decision. 38 U.S.C. § 7102(a). As an appeal can be assigned only to an individual VLJ or to a panel of not less than three VLJs, a third VLJ has been empaneled to participate in this decision. Id. An appellant has the right to testify at a hearing before each VLJ who will serve on a panel in his or her appeal. See Arneson v. Shinseki, 24 Vet. App. 379 (2011); 38 C.F.R. § 20.604. Here, the appellant waived her right to a hearing before a third VLJ. See January 2025 Hearing Transcript at pg. 13. Thus, the Board will adjudicate the claim without a third hearing. Effective Dates Unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Additionally, the effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). On March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sep. 25, 2014). Original decisions, issued prior to February 19, 2019, are generally governed by VA's legacy appeals system. Under that system, a claimant generally has one year to appeal a decision or to submit new and material evidence after receiving notice of an AOJ decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156. The date of mailing of the letter of notification from the AOJ will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. §20.302(a). If an appeal is not timely filed and new and material evidence is not actually or constructively received within one year of mailing of the notice of the decision, then that decision becomes final. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with the previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 U.S.C. § 5108 (as in effect prior to February 19, 2019); 38 C.F.R. § 3.156. For purposes of determining whether a decision became final, VA will consider evidence actually received within one year of a decision, as well as evidence constructively received within one year. A veteran's VA treatment records are considered constructively received as of the date that they are generated. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). Procedural History This claim has a long procedural history. In the November 2014 rating decision, the Veteran was granted service connection for his adjustment disorder with depressed mood with an initial rating of 30 percent effective March 21, 2014. In March 2015, the Veteran's representative submitted an incomplete Notice of Disagreement (NOD). The Veteran's representative did not indicate any specific issue of disagreement in the NOD or associated cover letter, but stated the following: I have been asked to represent the above[-]named client. I do not yet know what stage this case is at or what decisions have been issued other than those provided by the veteran.... I do not yet know whether any appeal periods are currently running. Under the circumstances, please treat this letter as a notice of disagreement from any decisions that may have been received within the last year, as my client desires to appeal each and every issue in the decision....It is not possible to complete the form in more detail on the outstanding issues without knowing the status of the veteran['s] case. If a copy of any rating decision issued by your office within the previous year is sent by fax or mail to the address above, I will ensure that a more detailed form is completed as soon as possible based on the information provided. In April 2015, the VA notified the Veteran and his representative that the March 2015 NOD was inadequate. In June 2015, the representative re-submitted the March 2015 NOD and associated cover letter. See March 2015 NOD and March 2015 Third Party Correspondence. The NOD and cover letter were identical to the March 2015 filings except for a "2nd Request Time Sensitive Please Acknowledge and Respond" stamp placed on the cover letter. On September 9, 2015, the Veteran submitted an intent to file aa claim for compensation. In October 2016, the Veteran, through a congressional representative, submitted a VA Form 21-8940 requesting entitlement to a TDIU. See also October 2016 Congressional Email. Thereafter, the January 2017 rating decision, in pertinent part, granted the Veteran an increased rating from 30 percent to 50 percent for the Veteran's adjustment disorder, effective October 31, 2016. This decision also granted the Veteran entitlement to a TDIU and DEA from October 31, 2016. Then, the Veteran, through his representative, timely filed a March 2017 NOD requesting an earlier effective date, prior to October 31, 2016, for the awards of a 50 percent rating for the Veteran's adjustment disorder, TDIU, and DEA. In the associated cover letter, the representative argued that the Veteran should be granted an effective date of September 9, 2015 based on a September 2015 Intent to File a Claim. An October 2017 Statement of the Case (SOC) continued the denials of an effective date prior to October 31, 2016. Thereafter, a November 2017 VA Form 9 was timely filed, through the Veteran's representative, appealing this decision. Along with the VA Form 9, the representative resubmitted the inadequate March 2015 NOD and associated cover letter but submitted no argument or other explanation regarding this resubmission other than generally asserting that the Veteran was entitled to an earlier effective date. This correspondence was the first reference to the inadequate March 2015 NOD since the representative's June 2015 filing. As noted above, the Veteran was first provided with a hearing before the Board in September 2021. Thereafter, in the October 2022 decision, the Board granted an effective date of October 31, 2015 (one year before the VA Form 21-8940 was filed) for the awards of an increased rating of 50 percent for the Veteran's adjustment disorder, TDIU, and DEA. The remainder of the relevant procedural history, including the Veteran's death while the Board decision was on appeal to the Court and the appellant's subsequent award of substitution, is outlined above. The incomplete March 2015 NODs were inadequate. 38 C.F.R. §19.21(a)(1), concerning NODs, requires a claimant to use a form provided by the AOJ to initiate an appeal. On the form, the specific determinations with which the claimant disagrees must be identified to the extent a form provided pursuant to (a)(1) of this section so requires. 38 C.F.R. §19.21(a)(4). A written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudication determination by the AOJ and a desire to contest the result will constitute a NOD relating to a claim for benefits in any case in which the AOJ does not provide a form identified as being for the purpose of initiating an appeal. The NOD must then be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. §19.21(b). For appeals filed prior to March 24, 2015, as in this case, a NOD is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. 38 C.F.R. §20.201 (2014). A NOD does not require special wording, 38 C.F.R. §20.201, and VA is liberal in determining what constituted a notice of disagreement prior to March 24, 2015. Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007). Here, the record shows that the VA notification letter, dated in November 2014, notified the Veteran and his then-representative (Disabled American Veterans) of the November 2014 rating decision and how to appeal (appellate rights and provided with information on where to download and complete a VA Form 20-0958 (NOD form)). The VA notification letter was not returned as undeliverable, and there is no assertion that the notification was not received. The presumption of regularity remains intact and proper notice is considered to have been provided to the Veteran and his then-representative. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant's last known address of record, it will be presumed that VA properly discharged its official duties). The records shows that the Veteran's former-attorney representative submitted an incomplete NOD on March 23, 2015, where it did not identify the rating decision or issue that the Veteran sought to appeal as required on the NOD form, nor did the former-attorney representative identify the requisite information in the associated correspondence. See March 2015NOD and March 2015Third Party Correspondence. In the correspondence, dated in April 2015, the AOJ advised the Veteran and his former-attorney representative that the NOD was insufficient to express disagreement with a prior decision because it lacked specificity as to the issue and rating decision. See April 2015 Correspondence. Subsequently, the Veteran's former-attorney representative submitted another incomplete NOD in June 2015, which again did not identify an issue or rating decision that the Veteran sought to appeal as required by the NOD form, despite being specifically advised to do so in the April 2015 notification letter. During the September 2021 Board hearing, the Veteran's current attorney representative acknowledged that the 2015 NODs lacked specificity but requested the Board take a liberal review of documents. Here, the VLJ specifically commented that she had reviewed the 2015 NODs and accompanying correspondences, and she felt that the language used by the former-attorney representative was "very broad" and "very vague" as it did not specify any issue to be appealed. See September 2021 Hearing Transcript. The current representative did not provide any further argument in support of liberal review in the post-hearing appellate brief. The Board observes that the Veteran was represented in his dealings with the VA at this time. He was represented by Disabled American Veterans starting in 2013, then by attorneys affiliated with a law firm: first, attorney P. Gronbeck starting in March 2015; and second, by A. Jackson starting in December 2017, who is the appellant's current attorney representative. Importantly, an attorney is charged with providing competent representation to a veteran, which includes an understanding of the issues of law and fact in a claim, knowledge of the relevant laws and regulations, and the necessary skill, thoroughness, and preparation. 38 C.F.R. §14.632(b)(1). The Veteran's former-attorney representative was required to be aware of the laws and regulations concerning the need to identify the rating decision and issue or issues as requested by the NOD form, but failed to do so, which cannot be cured through a liberal review of the document now when the NODs do not even at a high level identify the sickness, disease, injuries, or decision on which there is disagreement. Cf. e.g. Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). Neither the arguments noted in the 2015 incomplete NODs nor in the associated correspondences contain specific information to satisfy the minimal pleading requirements of 38 U.S.C. §7105 to initiate an appeal as to the November 2014 rating decision. The March 23, 2015, documents contain insufficient information to identify any rating decision or issue(s) with which the Veteran disagreed and/or sought to appeal prior to the March 24, 2015 amendment. The Board acknowledges that the Veteran's former-attorney representative had unfulfilled privacy requests filed within a year of the November 2014 rating decision, in which she had requested a copy of "any decision from the past year." See March 2015 and June 2015 Third Party Correspondences. Those pending privacy requests, which were not fulfilled until much later when the representative had access to the electronic claims folder in Veterans Benefits Management System (VBMS), do not forestall finality or toll the filing of the NOD as to the November 2014 rating decision. Additionally, the former-attorney representative's firm was granted a copy of the Veteran's file in August 2014 after being requested by the firm's Social Security division. See August 2014 Third Party Correspondence, August 2014 VA Correspondence (labeled Third Party Correspondence). The Board has considered whether the doctrine of equitable tolling applies to this case. As a general matter, "equitable tolling pauses the running of, or 'tolls,' a statute of limitations when a litigant has pursued his [or her] rights diligently but some extraordinary circumstance prevents him from bringing a timely action." Lozano v. Montoya Alvarez, 134 S. Ct. 1224, 1231-32 (2014). Under the "stop-the-clock" approach adopted by the U.S. Court of Appeals for the Federal Circuit in Checo v. Shinseki,748 F.3d 1373, 1379-80 (Fed. Cir. 2014), a filing period may be tolled when an obstacle to timely filing arises, and the period begins to run again when that obstacle is removed. Thus, the relevant period for the equitable tolling analysis is the time during which the obstacle to timely filing exists. Generally, equitable tolling applies only where circumstances preclude a timely filing, despite the exercise of due diligence, such as: (1) a mental illness rendering one incapable of handling one's own affairs or other extraordinary circumstances beyond one's control, (2) reliance on the incorrect statement of a VA official, or (3) a misfiling at the AOJ or the Board. See Bove v. Shinseki, 25 Vet. App. 136, 140 (2011) (per curiam order). There is a three-part test to determine whether "extraordinary circumstances" in particular justify equitable tolling: (1) the extraordinary circumstance must be beyond the veteran's control, (2) the veteran must demonstrate that the untimely filing was a direct result of the extraordinary circumstances, and (3) the veteran must exercise due diligence in preserving his or her appellate rights, meaning that a reasonably diligent person, under the same circumstances, would not have filed his or her appeal within the appeal period. See McCreary v. Nicholson, 19 Vet. App. 324 (2005). The Board finds that equitable tolling is not warranted in this case. As noted above, in November 2014, the Veteran and his then-representative were properly notified of the award of service connection and initial assigned rating and effective date for his adjustment disorder disability, as well as his appellate rights. It was not returned as undeliverable. There is a presumption of regularity, and the Veteran had actual knowledge of the November 2014 rating decision. Neither he nor his then-representative took any action. VA does not have an obligation to re-issue notification simply because of a change in representation four months later. Once the Veteran obtained private attorney representation in March 2015, there is no indication of circumstances which prevented him from notifying his then-former-attorney representative of the November 2014 rating decision and any desire to appeal that decision. The Veteran's former-attorney representative could have certainly learned of the matters decided by VA directly from the Veteran, himself, with whom the attorney had sufficient communications to execute a fee agreement. His former-attorney representative is charged with knowledge of the law, to include deadlines; the Veteran is competent and had actual knowledge of November 2014 rating decision (and any matter that he presumably sought to appeal); and thus, the former-attorney representative was not deprived of access to the information needed to file a timely appeal of any rating decision and there is no explanation as to why that could not be accomplished. Therefore, irrespective of the change in representation in March 2015 and accompanying circumstances regarding the privacy requests, the Board cannot find that a reasonably diligent attorney in the same circumstances would not have communicated with her client on matters/issues before VA on which he disagreed to include the rating decision. While the Board does not condone VA's failure to provide a copy of records as requested in March 2015 and June 2015, the former-attorney representative identified no specific rating decision or issues previously addressed by AOJ. Rather, the requests appear to be a general exploration or fishing expedition when that information was easily obtainable directly from the Veteran. Ultimately, having given this matter careful consideration, the Board does not find any deprivation of fair process or due process, or a breach of VA's duty to assist to forestall the finality of the November 2014 rating decision or toll the filing of a NOD against the November 2014 rating decision. Consequently, the Board finds that the March 2015 NODs were inadequate as to the appeal of the November 2014 rating decision. The November 2014 rating decision is not final due to constructive receipt of new and material evidence within one year of its issuance Despite the inadequacy of the March 2015 NODs, the Board finds that the November 2014 rating decision remains pending due to the constructive receipt of new and material VA-generated treatment records. In Lang v. Wilkie, the Federal Circuit Court of Appeals held that evidence is constructively received by a VA adjudicator post-decision if it is (1) generated by VA or submitted to VA, and (2) can reasonably be expected to be connected to the Veteran's claim. Lang, at 1354. Notably, a veteran's own VA treatment records are always reasonably expected to be connected to a claim. See id. at 1355. Such evidence is considered constructively received by the AOJ, even if the adjudicator has no actual knowledge of the existence of the evidence. Importantly the Board recognizes that the facts in this case are similar to those in Lang, in that both matters involved the finality of rating decision awarding service connection for a psychiatric disability. In Lang, the Veteran filed for disability compensation for his psychiatric disability in April 1995 and was granted service connection for his psychiatric disability at 10 percent in a June 1996 rating decision. The Veteran did not file a written appeal of the June 1996 decision within one year; however, the Veteran continued to receive treatment for his psychiatric disability at a VA medical center. In February 2014, the Veteran filed a claim to revise the 1996 rating decision based on an assertion of clear and unmistakable error ("CUE"). After review, the Federal Circuit Court of Appeals found that a CUE analysis was not necessary. They held that the Veteran's 1996 rating decision was not final due to the constructive receipt of VA treatment records for his psychiatric disability. Therefore, the claim remained open until the VA determined whether the post-decision, constructively received treatment records constituted "new and material" evidence. In the current matter, the Veteran continued to receive VA treatment for his adjustment disorder due to his service-connected ankle injury within one year following the issuance of the November 2014 rating decision. See, e.g., January 2015 VA Psychiatry Attending Note (noting worsening struggles with depression secondary to ankle injury); March 2015 and April 2015 VA Mental Health Social Worker Notes (noting increasing isolation from friends and family). These records are new, as they were not previously considered, and they are material to the rating assigned to his adjustment disorder. 38 C.F.R. § 3.156(b). The AOJ was constructively in possession of this new and material evidence. See Lang, 971 F.3d 1348. When new and material evidence is received within an appeal period or prior to the issuance of an appellate decision, the effective date for any resulting award of benefits will be as though the former decision had not been rendered. See Davis v. McDonough, 34 Vet. App. 131, 136-137 (2021). Indeed, "it must be clear that VA considered and applied [the rule governing submission of new and material evidence] when warranted." Id. VA is required to respond directly to a submission received during an appeal period, and until it does so the claim at issue remains open. Id. at 137. Here, the AOJ did not issue a decision determining whether the constructively received treatment records received after the November 2014 rating decision constituted "new and material" evidence as to the propriety of the Veteran's rating for his adjustment disorder. Instead, these new VA treatment records were not considered by the AOJ until the January 2017 rating decision currently on appeal. Therefore, the November 2014 rating decision as to the issue of the propriety of the Veteran's rating for his adjustment disorder is not final, and the Board finds that the current claims before the Board have been pending since March 21, 2014, the date the Veteran was granted service connection for his adjustment disorder. 1. Entitlement to an effective date prior to October 31, 2015, for the award of a 50 percent rating for adjustment disorder is denied. Before his death, the Veteran, through his representative, generally asserted that he was entitled to an earlier effective date for the award of a 50 percent rating for an adjustment disorder. His adjustment disorder has been rated as 30 percent disabling from March 21, 2014 and 50 percent disabling from October 31, 2015. As noted above, the effective date of an evaluation and award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Board has now found that the current appeal period before the Board begins on March 21, 2014, the date service connection was established, which is the "date of claim" for effective date purposes. Accordingly, the Board now turns to determining the "date entitlement arose," or whether the met the criteria for an award of a 50 percent rating for an adjustment disorder at any point between March 21, 2014, his date of claim, and October 31, 2015, the current effective date for his 50 percent rating. The Veteran's adjustment disorder has been rated under DC 9440, which specifically contemplates chronic adjustment disorder. DC 9440 applies the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, DC 9440. Since DC 9440 specifically contemplates his adjustment disorder, no other DC may be employed to rate his disability, though the Board notes that all psychiatric disorders are rated pursuant to the General Rating Formula. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Under the General Rating Formula, 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). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when the evidence shows 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If the evidence is not in approximate balance or nearly equal, the claim is to be denied. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). After a review of the medical and lay evidence of record, the Board finds that the criteria for a 50 percent rating are not met at any point between March 21, 2014 and October 31, 2015. Instead, the Veteran's symptoms of his adjustment disorder are squarely contemplated by the 30 percent rating assigned during this time. Specifically, the evidence shows that the Veteran's adjustment disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to such symptoms as: depressed mood, anxiety, irritability, chronic sleep impairment, disturbances of motivation and mood, and resolved mild memory loss. In this regard, the Board emphasizes that in October 2013, just prior to the appeal period, a VA examiner determined that the Veteran did not meet the criteria for a mental disorder diagnosis. The examiner noted that the Veteran was in a long-term relationship and was relatively active given the limitation from his ankle injury, though noting low energy and frustration as a result of pain. During the November 2014 VA examination, the examiner found that the Veteran showed symptoms of depressed mood, mild memory loss, and disturbances of motivation and mood, resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks consistent with a 30 percent rating. At that time the Veteran had stopped working, noting he was "let go" due to his physical problems. However, his employer has reported that he did not show up to work after March 7, 2014. See January 2017 VA Form 21-4192. The Veteran stated that he was living with his girlfriend and son, with no problems at home, and that he had one friend he talks to every couple of weeks. He demonstrated adequate grooming and hygiene and was fully oriented, with no problems in thinking, communication, attention, concentration, or memory. He denied any suicidal or homicidal thoughts. The Veteran's VA mental health records during this period note the Veteran's diagnosis of major depressive disorder and categorize the severity as "moderate-severe" due to "significant depressive symptoms." See March and August 2014. However, he consistently presented as alert and well-groomed, with clear speech, normal cognitive function, good judgment and insight, and full range of affect, with no suicidal or homicidal ideation, paranoia, or delusions. See March and April 2014 VA treatment records. He endorsed high stress in June 2014, but was fully oriented, with normal speech and thought content. In July 2014, he reported he could not work and that his mood was depressed and interfering with his relationships. He evidenced poor sleep, appetite, and concentration, with low energy, anhedonia, and moderate anxiety. Mental status examination revealed he was casually dressed, with depressed mood and affect, but with normal speech, thought content, insight and judgment. His medication was adjusted in August 2014, with him noting improvement in his symptoms of poor sleep, appetite, and concentration, with low energy, anhedonia, and moderate anxiety from the month prior. The Veteran again presented as well-groomed, with "normal" mood, speech and motor function, good insight and judgment, and euthymic affect. He reported continual loss of interest in activity and loss of energy in September 2014, but denied suicidal ideation. In December 2014, January 2015, March 2015, and June 2015, he reported fair concentration with fair/low energy and increased/fair anxiety. Mental status examination demonstrated good hygiene, appropriate affect, normal speech and thought process, with fair judgment and insight at these times. In March 2015 and April 2015, he reported increased isolation from friends and family who complain that he does not want to socialize anymore. In July 2015, he endorsed increased irritability that is affecting his relationships. Mental status examination in August 2015 demonstrated good hygiene, restricted/dysphoric affect, normal speech and thought process, and good judgment and insight, with the Veteran denying suicidal and homicidal ideation, delusions, and hallucinations. In considering the above, the Board finds that the criteria for a 50 percent rating are not met prior to October 31, 2015. While the Veteran's affect has been described as euthymic, depressed, dysphoric, and restrictive, it has never been characterized as "flattened," which is generally defined as total or near absence of appropriate emotional responses to situations and events. See e.g., American Psychological Association (APA) Dictionary of Psychology, https://dictionary.apa.org/flat-affect (last accessed on May 22, 2025). His speech and thought processes were normal throughout the appeal period, and the Veteran did not endorse panic attacks. His mild memory loss is consistent with a 30 percent rating. While his judgment was "fair" on three occasions, it was normal on seven others, including during the 2014 VA examination; thus, the Board does not concede impaired judgment. His thinking was consistently described as normal. Finally, while the Veteran reported increasing isolation and irritability toward the end of the appeal period, and difficulty getting along with others, he was still able to maintain a relationship with his girlfriend, son, and a friend with whom he speaks regularly. Thus, the Board does not find difficulty in establishing and maintaining effective work and social relationships. The Board concedes that the Veteran evidenced disturbances of motivation and mood during this period. However, this is only one of the enumerated criteria for a 50 percent rating. The Veteran does not evidence any of the other enumerated symptoms for a 50 percent rating or other symptoms of similar frequency, severity, or duration. Instead, his psychiatric disorder was characterized by depressed mood, anxiety, irritability, chronic sleep impairment, and mild memory loss, and these symptoms more closely approximate the criteria for a 30 percent rating. 38 C.F.R. § 4.7. Thus, as the Veteran does not meet the criteria for a 50 percent rating at any point during this period, the "date entitlement arose" for effective date purposes is October 31, 2015. In this regard, the Board notes that the appellant competently and credibly testified that, based on her personal observations of the Veteran, his psychiatric symptoms were just as severe in 2014 as they were in 2015, the current effective date of his 50 percent rating. She described how even prior to filing his claim in 2014 he was in pain and depressed, had difficulty concentrating, and evidenced episodes of angry outbursts. See January 2025 Board Hearing Transcript (Tr.) at 6-7. While the appellant is competent to report her observation of the Veteran's symptoms, the Board affords more probative value to more contemporaneous VA examination report and treatment records demonstrating symptomatology consistent with a 30 percent rating. Similarly, while Q.A.-S., Ph.D., noted in December 2021 upon review of these records that the Veteran's "depression throughout has been fairly consistent, both in terms of severity and symptoms," the Board again affords more probative value to the contemporaneous records outlined above. Accordingly, as the "date entitlement arose" for effective date purposes is October 31, 2015, and is later than the date of claim, entitlement to an effective date prior to October 31, 2015 for the award of an increased 50 percent rating for the Veteran's adjustment disorder is denied. 2. Entitlement to an effective date prior to October 31, 2015 for the award of a TDIU is remanded. 3. Entitlement to an effective date prior to October 31, 2015 for the award of basic eligibility for DEA under 38 U.S.C. Chapter 35 is remanded. The Veteran does not meet the schedular criteria for entitlement to a TDIU between March 21, 2014, and October 31, 2015, as he has a combined disability rating of 60 percent based off of multiple disabilities that cannot be considered "one disability" for TDIU purposes. See 38 C.F.R. § 4.16(a). However, it is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16(b). The Court has held that the initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66-7 (2019). Here, the Veteran did not receive substantially gainful income from employment between March 21, 2014 and October 31, 2015. Additionally, he was determined to be disabled by the Social Security Administration (SSA) during this period, in part due to arthropathies, which includes his right ankle and foot disabilities. See January 2017 SSA records. Accordingly, the Board finds that on the present record, the low threshold for an initial extraschedular TDIU referral for the period between March 21, 2014 and October 31, 2015 is met. On remand, the AOJ should refer the issue of entitlement to a TDIU to the Director of Compensation Service for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1 (2001). Action on the inextricably intertwined DEA claim is deferred. These matters are REMANDED for the following action: Refer the matter of entitlement to an extraschedular TDIU between March 21, 2014 and October 31, 2015 to the Director of Compensation Service. The Director's attention is invited to Veteran's SSA records. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals C.A. SKOW Veterans Law Judge Board of Veterans' Appeals S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jones, Amber J. 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.