MENTAL DISORDERS

B. D. WATSON · 2024 · Case ID: A24070203

DENIED

Summary

The veteran, who served in the Air Force from August 1970 to April 1974, appeals the denial of service connection for an acquired psychiatric disorder and an increased rating for his service-connected major depressive disorder with anxious distress. The Board reviewed the Veteran's service treatment records, which indicated no psychiatric issues at entry, but noted anxiety and hospitalization in 1972 for situational stress reaction, with a diagnosis of "fit for worldwide duty." Post-service records showed ongoing treatment for essential tremors, with the Veteran consistently denying depression or anxiety in VA examinations. A private opinion from Dr. J. Gonzalez was afforded no probative value due to lack of supporting rationale and treatment history. A subsequent VA examination in January 2021 diagnosed major depressive disorder with anxious distress, recurrent, moderate, noting symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss, but found these symptoms approximated a 30 percent rating and did not warrant a higher evaluation. The Board found the VA examiner's opinion persuasive, concluding that the Veteran's symptoms were contemplated by his existing service-connected major depressive disorder and did not support a separate psychiatric diagnosis or an increased rating. The Board denied service connection for an acquired psychiatric disorder and an increased rating for major depressive disorder. The Board also denied an earlier effective date for the major depressive disorder, finding the November 30, 2020, date of the supplemental claim was the correct effective date.

Rationale

Service treatment records showed no psychiatric issues at entry.; In-service hospitalization for situational stress reaction in 1972.; Post-service VA examinations consistently denied depression/anxiety and showed satisfactory functioning.; Private opinion lacked supporting rationale and treatment history.; VA examiner's opinion found symptoms contemplated by existing major depressive disorder.

Service Branch

AIR FORCE

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

9434

Docket No.

210213-140854

Full Decision Text

Citation Nr: A24070203
Decision Date: 10/29/24 Archive Date: 10/30/24

DOCKET NO. 210213-140854
DATE: October 29, 2024

ORDER

Entitlement to service connection for an acquired psychiatric disorder, other than major depressive disorder with anxious distress, recurrent, moderate, to include mental disorders, mood disorders, and nervous condition, is denied.

Entitlement to an initial rating in excess of 30 percent for major depressive disorder with anxious distress, recurrent, moderate (also claimed as mental disorders, mood disorders, major depressive disorder, nervous condition, depression) is denied.

Entitlement to an effective date earlier than November 30, 2020, for the award of service connection for major depressive disorder with anxious distress, recurrent, moderate is denied.

FINDINGS OF FACT

1. The Veteran's psychiatric symptoms are contemplated by his service-connected major depressive disorder with anxious distress, recurrent, moderate, and the evidence persuasively weighs against finding that the Veteran has a separate psychiatric disorder that had its onset in service or is otherwise related to disease or injury in service.

2. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity.

3. The November 2018 rating decision that denied entitlement to service connection for mental disorders, mood disorders, major depressive disorder, nervous condition, depression, is final.

4. A petition to reopen the previously denied claim of entitlement to service connection for an acquired psychiatric disorder (claimed as mental disorders, mood disorders, major depressive disorder, nervous condition, depression) was received on November 30, 2020.

CONCLUSIONS OF LAW

1. The criteria for service connection for an acquired psychiatric disorder, other than service-connected major depressive disorder with anxious distress, recurrent, moderate, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2023).

2. The criteria for a disability rating in excess of 30 percent for major depressive disorder with anxiety distress, recurrent, moderate, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2023).

3. The criteria for an effective date earlier than November 30, 2020, for the award of service connection for major depressive disorder with anxious distress, recurrent, moderate, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2023).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 1970 to April 1974.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for major depressive disorder with anxious distress, recurrent, moderate, with an assigned 30 percent rating, and denied service connection for mental disorder, mood disorders, and nervous condition. The Veteran disagreed with the decision and timely filed a VA Form 10182 Decision Review Request: Board Appeal (Notice of Disagreement) in February 2021, electing the Hearing docket in the modernized review system, also known as the Appeals Modernization Act (AMA).

In July 2024, the Veteran testified at a Board hearing; a transcript of that hearing is of record. Under the AMA framework, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a).

If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the present claims for service connection, increased rating, and an earlier effective date. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file 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
the hearing. 38 C.F.R. § 20.302(a).

As an initial matter, the issue of service connection for mental disorders, mood disorders, major depressive disorder, nervous condition, depression had been previously denied in a November 2018 rating decision. Although the Veteran submitted a notice of disagreement with that decision and a Statement of the Case was issued in December 2019, the Veteran did not submit a VA Form 9 perfecting his appeal. As such, the decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. However, VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156(d). In November 2020, the Veteran submitted a supplemental claim seeking to reopen his claim. The January 2021 rating decision did not address whether new and relevant evidence had been received to readjudicate the previously denied claim for service connection for mental disorders, mood disorders, major depressive disorder, nervous condition, depression. While not addressing whether there was new and relevant evidence with respect to the previously denied claim, the AOJ implicitly found new and relevant evidence had been received by readjudicating the claim on the merits. Therefore, the Board will address the claims on the merits. See 38 C.F.R. § 20.801.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Pertinent to a claim for service connection, such a determination requires a finding of current disability that is related to an injury or disease in service. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (the Court) held that the requirement of the existence of a current disability is satisfied when a Veteran has a disability at the time he files a claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.

Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service.
a Veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency.

Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected condition. 38 C.F.R. § 3.310.

1. Entitlement to service connection for an acquired psychiatric disorder, other than major depressive disorder with anxious distress, to include mental disorder, mood disorders, and nervous condition

The Veteran contends that he is entitled to separate service connection for his mental disorder, mood disorders, and nervous condition. At the July 2024 Board hearing, the Veteran's representative acknowledged that mood disorders, mental disorders, and depressive disorders "are all encapsulated under the mental rating schedule" and suggested the Veteran's disorders lend to increasing his already service-connected major depressive disorder with anxious distress. Increased ratings will be discussed below.

The Board first notes that a claim of service connection encompasses all pertinent symptomatology, regardless of how that symptomatology is diagnosed. See Clemons v. Shinseki, 23 Vet. App. 1, 5, 9 (2009). This is because a claimant is not expected to have medical expertise and generally "is only competent to identify and explain the symptoms that he observes and experiences." See id. Therefore, the Board has recharacterized this claim as entitlement to service connection for an acquired psychiatric disorder, to include mental disorder, mood disorders, and nervous condition.

Turning to the record, the Veteran's service treatment records reflect the Veteran had no issues with anxiety/depression at entry or for the first two years of active duty. The Veteran's enlistment examination in April 1970 specifically indicated that he had no psychiatric and/or neurologic troubles. In July 1972, the Veteran indicated a desire to see a psychiatrist for "mounting anxiety." He was admitted to psychiatric services for observation with severe anxiety, inability to eat or sleep, suspiciousness, and inappropriateness. It was noted that the Veteran had been in Germany only 7 days but had history of being German born, adopted, and brought to the United States as a child of 4. On mental status evaluation in August 1972, the Veteran was noted to have moderate anxiety initially and mildly pressured speech; however, there was no evidence of thought disorder, delusions, suicidal or homicidal ideations, or hallucinations. His mood was mildly depressed and affect appropriate. Laboratory/diagnostic testing results were normal. The physician noted that the Veteran adjusted and functioned "quite well" in the ward during his hospitalization and expressed a desire to return to duty. The physician noted the Veteran's condition as clinically stable, his prognosis in military life was good, and that the optimal benefits of hospitalization had been achieved. The Veteran was discharged to duty and classified "fit for worldwide duty," with discharge diagnosis noted as: situational stress reaction, moderate, acute, in remission; degree of impairment: none.

In August 1973, the Veteran complained of feeling "very nervous" and was prescribed Valium, which was refilled in November 1973. A January 1974 note indicated another refill of Valium prescribed "for nerves" and there would be no more refills until mental health followed up. On follow-up in February 1974, the Veteran was noted to be "much calmer" and, on the prerequisite the Veteran would quit marijuana, the physician prescribed Thorazine. On his separation report of medical history in February 1974, the Veteran check-marked that he had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. On examination, the physician noted that the Veteran had "nervousness throughout life" and that his depression and trouble sleeping referred to the anxiety problems. He was noted to be presently on medication, had past use of drugs, and denied family history of psychosis. He was honorably discharged in April 1974.

VA treatment records indicate that the Veteran sought to establish VA care in February 2016. At that time, the Veteran denied having any depression
, on the prerequisite the Veteran would quit marijuana, the physician prescribed Thorazine. On his separation report of medical history in February 1974, the Veteran check-marked that he had frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort. On examination, the physician noted that the Veteran had "nervousness throughout life" and that his depression and trouble sleeping referred to the anxiety problems. He was noted to be presently on medication, had past use of drugs, and denied family history of psychosis. He was honorably discharged in April 1974.

VA treatment records indicate that the Veteran sought to establish VA care in February 2016. At that time, the Veteran denied having any depression, anxiety, or thoughts of suicide or harming others. On depression screening, he answered "not at all" to having little interest or pleasure in doing things, or feeling down, depressed, or hopeless. Past medical history included degenerative disc disease in the 1980s, and there were no current medications. Occupation noted was plumber. On exam, he was noted to have essential tremor hands and head. He was assessed in "relatively good health" and started on medication for his essential tremor. In June 2016, the Veteran indicated his tremors were first noticed ten years ago by others with involuntary head bobbing and gradually progressed to his hands.

In an April 2017 annual visit, the Veteran complained of allergies and essential tremor, noting betterment since going on medication. He denied having any depression, anxiety, or thoughts of suicide or harming others, and scored negative on depression screening. On assessment, he was noted to be in good health, and his tremor medication was increased. In June 2017, he indicated his tremors were getting worse as he was unable to poor coffee or cereal without spilling. On assessment, it was noted the Veteran's essential tremors were better on medication, and that he works daily as a plumber.

On April 2018 primary care for check-up/lab results, the Veteran scored negative on depression screening and indicated, no, nothing in life recently caused him worry or stress. On April 2018 annual visit, the Veteran was noted to have no change in mood or behaviors on review of systems. A September 2018 neurology note indicated ongoing treatment for essential head and hand tremors. An April 2019 primary care note listed the Veteran's active problems as essential hypertension, hyperlipidemia, and tremor. The Veteran indicated he was doing "pretty good," seeing a non-VA provider at Neurosurgery Tulsa but couldn't remember his name, and denied having any personal problems or family concerns causing worry or stress since last visit. He also denied feelings of sadness, emptiness, or depression.

In September 2020, he also denied having any personal problems or family concerns causing worry or stress since his last visit, and/or any feelings of sadness, emptiness, or depression. A November 2020 nurse note indicated the Veteran called about the neurology consult he had with Dr. Gonzalez wherein he stated the consult was canceled and he was not sure why. The nurse later informed the Veteran that the consult was not canceled, but the request for consult had expired.

Post-service private treatment records indicate the Veteran has medical history of hypertension, abdominal aortic aneurysm, and essential tremor. On exam, he was noted to be fully alert and oriented, in no acute distress, and had tremors of hands, head, and voice. Ongoing treatment regarding tremors was noted.

The Veteran was afforded a VA examination for mental disorders in October 2018. On in-person examination and review of records, the examiner did not diagnose the Veteran with a mental disorder and thus opined the claimed condition was less likely than not incurred in or caused by service, reasoning he was sent to duty in Germany which excited him as it created an opportunity to find his biological mother, but he quickly gave up and never thought on it again. The Board finds the examiner's opinion supported by the Veteran's lay statements at the examination wherein he stated he did not recall ever being treated by a mental health professional, he slept well, his energy was fine, and his only symptom - appetite waxing/waning - is mild and episodic. He indicated there was no impact on his daily functioning as he denied trouble sleeping, history of violent behavior, suicide attempts, other mental problems, psychotherapy, or post-service psychiatric hospitalizations/emergency room visits. He did endorse an essential tremor since 1983 for which he was on medication, and denied any changes in his daily activities or social functions indicating that, after service, he has been a plumber for 44 years and has a good relationship with his supervisor and co
supported by the Veteran's lay statements at the examination wherein he stated he did not recall ever being treated by a mental health professional, he slept well, his energy was fine, and his only symptom - appetite waxing/waning - is mild and episodic. He indicated there was no impact on his daily functioning as he denied trouble sleeping, history of violent behavior, suicide attempts, other mental problems, psychotherapy, or post-service psychiatric hospitalizations/emergency room visits. He did endorse an essential tremor since 1983 for which he was on medication, and denied any changes in his daily activities or social functions indicating that, after service, he has been a plumber for 44 years and has a good relationship with his supervisor and co-workers and no problems at work and enjoys numerous activities (i.e., reading Bible, watching television, taking care of 12 dogs).

The Veteran's representative submitted a private opinion letter in support of the Veteran's claim from Dr. J. Gonzalez of Tulsa Neurospecialists, dated June 2019. Dr. Gonzalez concluded that the Veteran developed severe anxiety and depression while on active duty in 1972 and that his mental condition severely aggravates his essential tremors; thus, it is at least as likely the Veteran's essential tremors are related to service. However, nothing in the letter, or the evidence of record, indicates whether Dr. Gonzalez ever treated the Veteran, reviewed the Veteran's service personnel/treatment records or post-service treatment records, examined the Veteran, and/or referenced any medical research/literature in support. A mere conclusory statement, without adequately supported rationale, is inadequate for adjudication purposes. The Board therefore affords Dr. Gonzalez's opinion no probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is factually accurate, fully articulated, and based on sound reasoning for the conclusion).

The Veteran was afforded another VA examination for mental disorders in January 2021. With regard to relevant social/marital/family history, the examiner noted that, pre-military, the Veteran reported he was adopted and raised as an only child, during military servicde he transferred to Germany where he began having "memories" of events when he was an infant living there in an orphanage which was upsetting and caused him to drink alcohol heavily. Thereafter, he was hospitalized. Post-military, he reported being married five times, currently for 1.5 years, has no biological children, and currently lives with a son in Oklahoma while his wife lives in Louisiana.

With regard to relevant occupational/educational history, the examiner noted that, pre-military, the Veteran reported participating in sports, had an average number of friends and was an average student, and, after graduation, he enrolled in college for one semester before enlisting in the military. His military job in the Air Force was civil engineer and he trained as a plumber. He reported that he "had a reaction" when stationed in Germany, started drinking heavily, was hospitalized there and back in the states, and then reassigned to South Carolina. He reported receiving an honorable discharge and, post-military, continued to work as a plumber and has worked as a plumber his entire working life.

With regard to relevant mental health history, the examiner refers to the October 2018 VA examiner's detailed listed of history, noting the Veteran was referred for psychiatric consultation while serving in the military. With regard to relevant legal and behavioral history, the Veteran reported that, post-military, he had legal issues involving 6 drinking under the influence (DUIs) and was incarcerated for 3 years and last drank in 1999 with no behavioral and/or substance abuse problems since.

On mental status examination, the Veteran was described as casually dressed and groomed and open and cooperative, responding to all questions effectively. He was fully oriented, appeared to be a good historian with no gross memory deficits, and evidenced tremors in his hands and head throughout. His thought content was appropriately varied, thought processes were logical and sequential, and affect was slightly anxious. The Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss (i.e., such as forgetting names, directions, or recent events). The VA examiner diagnosed major depressive disorder with anxious distress, recurrent, moderate, and summarized the Veteran's level of occupational and social impairment as occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted the Veteran could handle his own financial affairs.

With regard to the claimed "mental disorders" condition, the examiner opined there is no separate diagnosis because the diagnosed major depressive disorder with anxious
thought processes were logical and sequential, and affect was slightly anxious. The Veteran endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss (i.e., such as forgetting names, directions, or recent events). The VA examiner diagnosed major depressive disorder with anxious distress, recurrent, moderate, and summarized the Veteran's level of occupational and social impairment as occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner noted the Veteran could handle his own financial affairs.

With regard to the claimed "mental disorders" condition, the examiner opined there is no separate diagnosis because the diagnosed major depressive disorder with anxious distress "is" the mental disorder. Regarding the claimed "depression" condition, the VA examiner opined there is no separate diagnosis because depression is a symptom of his major depressive disorder with anxious distress and is therefore subsumed under that diagnosis. Regarding the claimed "mood disorder" and nervous condition" conditions, the examiner opined there is no diagnosis for either as there are no findings, signs, and/or symptoms to support separate diagnoses. The Board finds the examiner's well-reasoned opinion is fully supported by the evidence of record, and sufficiently informs the Board of the expert's judgment on the medical questions. As such, the Board finds the opinion is adequate, and affords it significant probative value.

After having carefully reviewed the record, the most probative evidence is persuasively against a finding that an acquired psychiatric disorder, other than the currently service-connected major depressive disorder with anxious distress, recurrent, moderate, had its onset in service, or is otherwise related to any in-service injury or disease.

Although lay persons are competent to provide opinions on some medical issues involving observable symptoms, as to the specific issue in this case, the diagnosis of a specific acquired psychiatric disorder, falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). To the extent that the Veteran believes that he has a separate psychiatric disorder other than his currently service-connected major depressive disorder with anxious distress, as a lay person, he is not competent to provide an opinion as to the likely etiology of a psychiatric diagnosis. Therefore, the medical evidence is of greater probative value than any lay contentions of the Veteran.

The Board does not dispute that the Veteran has a diagnosed acquired psychiatric disorder (major depressive disorder with anxious distress); however, his psychiatric symptoms are confirmed to be a manifestation of his service-connected disability. Moreover, any other alleged psychiatric symptoms have been found to be unrelated to his active service. The most probative evidence of record, specifically the January 2021 VA opinion, shows that the Veteran's service-connected major depressive disorder with anxious distress was responsible for all the Veteran's symptoms. The Board affords the January 2021 VA opinion high probative value as the examiner reviewed and discussed the evidence of record, including the previous VA examination report and provided a clear rationale for the opinions provided. Accordingly, based on the competent medical evidence, the Veteran does not have a separate psychiatric disorder and his symptoms, including anxiety and depression, are contemplated by his service-connected major depressive disorder with anxious distress.

The evaluation of the same disability under various diagnoses is to be avoided. It is possible for a Veteran to have separate and distinct manifestations from the same injury; however, the critical element in permitting service-connection for separate psychological disorders is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other disorder. While the Veteran can have separately service-connected disabilities, any overlapping psychiatric symptoms for each disability cannot be rated more than once. In the Veteran's case, these symptoms have already been considered in rating his service-connected major depressive disorder with anxious distress.

In summary, the evidence weighs persuasively against finding in favor of service connection for an acquired psychiatric disorder, other than major depressive disorder with anxious distress, to include mental disorders, mood disorder, and/or nervous condition.

Because the evidence fails to establish that any current psychiatric disability, other than the currently service-connected acquired psychiatric disorder, was incurred in, or caused by, active service, the Veteran's claim does not satisfy the criteria for service connection. The benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49

The Board notes that, at the July 2024 hearing, the Veteran's representative also contended entitlement to service connection for nervous condition because the Veteran's in-service nervous condition produced anxiety, which was then treated with Thorazine that, according to the medical treatises cited, can produce shaking and trembling as a side effect and, therefore, service connection for nervous condition to include shaking and trembling is warranted. However, she admittedly did not have a specific nexus opinion from a medical provider linking the Veteran's shaking and trembling to the medications used to treat his psychiatric disorder at that time. Here, the Veteran, through his representative, first raised this new theory of entitlement at the July 2024 hearing, which is after the January 2021 rating decision on appeal at which time the Veteran was service connected for major depressive disorder with anxious distress but not "tremors of hands and neck." Rather, the AOJ, in the January 2021 rating decision, expressly "deferred" his claim of entitlement to service connection for tremors of hands/neck for further development. The AOJ subsequently denied the claim in a rating decision issued after the January 2021 rating decision on appeal and after the February 2021 VA Form 10182 NOD. Under the AMA framework, the Board is unable to remand for a VA examination at this time as there is no pre-decisional duty to assist error to correct. Thus, this new theory of entitlement cannot be the basis of a duty to assist error on the part of the AOJ. Reviewing the evidence of record, the Board does not find that there was a pre-decisional duty to assist error, and, therefore, a remand for an examination or opinion is not appropriate for this issue.

If the Veteran believes that he has "shaking and trembling" (also claimed as tremors of hands and neck) secondary to a service-connected disability, to include medications used to treat service-connected disability, he may wish to file a Supplemental Claim. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Rating

2. Entitlement to an initial rating in excess of 30 percent for major depressive disorder

The Veteran seeks a rating in excess of 30 percent for his service-connected major depressive disorder with anxious distress, recurrent, moderate. He contends that his symptoms are more severe than the 30 percent disability rating reflects.

During the period on appeal, the Veteran's major depressive disorder with anxiety distress, recurrent, moderate, is rated 30 percent, under Diagnostic Code 9434, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130.

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 50 percent or higher.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 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
50 percent or higher.

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.

As noted, the Veteran was afforded a VA examination in October 2018. The Veteran reported being a plumber for 44 years, having a good relationship with his supervisor and co-workers and no problems at work, and indicated enjoyment of several activities. He reported his mental symptoms began in 1972, he could not recall ever seeing a mental health professional and described his sole symptom - appetite waxing/waning - as mild and episodic. He reported sleeping well and described his energy as fine. He denied trouble sleeping, history of violent behavior, suicide attempts, other mental problems, psychotherapy, or post-service psychiatric hospitalizations or emergency room visits. He did endorse an essential tremor since 1983 for which he was on medication. He denied any changes in his daily activities or social functions. On behavioral observation, the examiner noted the Veteran was open, honest, and forthright. The examiner also indicated the Veteran appeared not to pose any threat of danger or injury to himself of others.

The Veteran was also afforded a VA examination in January 2021. The Veteran reported being currently married for 1.5 years and living with a son in Oklahoma while his wife lived in Louisiana. He reported continuing to work as a plumber and that he has worked as a plumber his entire working life. He reportedly quit drinking in 1999, with no behavioral and/or substance abuse problems since.

On mental status examination, he appeared casually dressed and groomed, open and cooperative, and responded to all questions effectively. He was fully oriented, appeared to be a good historian with no gross memory deficits, but did evidence tremors in his hands and head throughout. His thought content was appropriately varied, thought processes were logical and sequential, and affect was slightly anxious. He endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss (i.e., such as forgetting names, directions, or recent events). The examiner diagnosed major depressive disorder with anxious distress, recurrent, moderate, and summarized the Veteran's level of occupational and social impairment as occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactor
he appeared casually dressed and groomed, open and cooperative, and responded to all questions effectively. He was fully oriented, appeared to be a good historian with no gross memory deficits, but did evidence tremors in his hands and head throughout. His thought content was appropriately varied, thought processes were logical and sequential, and affect was slightly anxious. He endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss (i.e., such as forgetting names, directions, or recent events). The examiner diagnosed major depressive disorder with anxious distress, recurrent, moderate, and summarized the Veteran's level of occupational and social impairment as occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner also noted the Veteran could handle his own financial affairs.

VA treatment records do not reflect any mental health-related complaints, diagnosis or treatment. VA treatment notes reflect the Veteran was always fully oriented and in no acute distress. On neurology consult in April 2018, he was noted to have no gait problems and no memory problems. On exam and depression screenings, he consistently denied having any depression, anxiety, or thoughts of suicide or harming others. He consistently denied having any life-causing worry or stress. VA treatment notes did reflect diagnosis of, and ongoing treatment for, essential tremors of hands and head that began around 2006; however, no etiology was indicated. Post-service private treatment records also reflect diagnosis of, and ongoing treatment for, essential tremors; however, no etiology was indicated.

The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126.

The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. In VA examination in 2021, the Veteran reported depressed mood, anxiety, sleep disturbances, and some memory loss. The examiner noted the Veteran was "slightly anxious" on behavioral observation, and noted his mental disorder symptoms as depressed mood, anxiety, chronic sleep impairment, and mild memory loss such as forgetting names, directions, or recent events. During the October 2018 VA examination, the Veteran reported that he worked as a plumber for 44 years, had a good relationship with his supervisor and co-workers and no problems at work, and enjoyed work and several activities (i.e., reading Bible, watching television, taking care of 12 dogs). VA treatment records note the Veteran continued to work daily as a plumber. During the 2021 VA examination, he reported being recently married, for 1.5 years, and that he lived with a son.

The 2021 VA examiner opined that the Veteran's disability resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational task. As the examiner's assessment was based both on the Veteran's reports of his symptoms, as well as the examiner's own measurements and observations, the Board affords the VA examiner's medical opinion significant probative weight as to the severity of the Veteran's psychiatric disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

In the absence of evidence of 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships, a rating in excess of 30 percent disabled for an acquired psychiatric disorder is not warranted.

Given the foregoing, the Board finds that the Veteran's symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a 50 percent, or higher, evaluation and that the findings do not support a conclusion that his symptoms are productive of a "similar severity, frequency, and duration" as those required for a 50 percent, or higher, evaluation. See 38 C.F.R. § 4.7; Vazquez-Claudio, supra. (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced
in excess of 30 percent disabled for an acquired psychiatric disorder is not warranted.

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 higher-than-30 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied.

The Board also notes that it has considered whether a claim for a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) has been raised by the Veteran during the pendency of this appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that VA must address the issue of entitlement to TDIU in increased rating claims when the issue of unemployability either is raised expressly or by the record. Here, there is no indication that the Veteran contends that his service-connected major depressive disorder with anxiety distress, recurrent, moderate, wholly precludes him from securing or following substantially gainful employment. Moreover, while not dispositive, the most contemporary available records show that the Veteran still works as a plumber. As such, the Board does not find that a claim of TDIU is raised by the record, and it will not be addressed further.

Effective Date

3. Entitlement to an effective date earlier than November 30, 2020, for the award of service connection for major depressive disorder with anxious distress

The Veteran contends that an earlier effective date prior to November 30, 2020, is warranted for the grant of service connection for major depressive disorder with anxious distress.

The law and regulations governing effective dates establish that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400.

A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p).

Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015.

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to
4). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015.

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a).

The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

A review of the record shows that VA received the Veteran's VA Form 21-0996 Intent to File a Claim in October 2017. Thereafter, in August 2018, the Veteran filed a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, seeking compensation for, in relevant part, an acquired psychiatric disorder, to include nervous condition and depression. The RO denied the claim in a November 2018 rating decision because the medical evidence of record failed to show that the claimed disability had been clinically diagnosed. The Veteran appealed that decision by filing a timely notice of disagreement (NOD) in November 2019; however, he did not perfect an appeal to the Board of this claim within 60 days after the RO issued a December 2019 Statement of the Case. Thus, the November 2018 rating decision became final.

On November 30, 2020, which is the currently assigned effective date, the Veteran filed VA Form 20-0995 Decision Review Request: Supplemental Claim, seeking to reopen the previously denied claim. VA examination in January 2021 diagnosed the Veteran with major depressive disorder with anxious distress, recurrent, moderate. The RO granted service connection for major depressive disorder with anxious distress, recurrent, moderate, in its January 2021 rating decision and assigned the November 30, 2020 effective date, and this appeal followed.

A review of the record shows that there are no unadjudicated claims that were received prior November 30, 2020.

As noted above, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Here, the claim to reopen was received on November 30, 2020, and arose after the date of entitlement, therefore it is the properly assigned effective date.

The Board also considered the Veteran's representative's July 2024 Board hearing contention that the Veteran's psychiatric disability manifested during service and, according to 38 C.F.R. § 4.129, such mental conditions are to be rated at 50 percent from the date of discharge. With regard to 38 C.F.R. § 4.129, it states:

When a mental disorder that develops in service as a result of a highly stressful event is severe enough to bring about the veteran's release from active military service, the rating agency shall assign an evaluation of not less than 50 percent and schedule an examination within the six-month period following the veteran's discharge to determine whether a change in evaluation is warranted.

The above version of 38 C.F.R. § 4.129 was incorporated in 2008, as part of the National Defense Authorization Act (NDAA) of 2008, and does
4.129, such mental conditions are to be rated at 50 percent from the date of discharge. With regard to 38 C.F.R. § 4.129, it states:

The above version of 38 C.F.R. § 4.129 was incorporated in 2008, as part of the National Defense Authorization Act (NDAA) of 2008, and does not apply to members of the military who were released from service prior to the revision. Russell v. United States, 106 Fed. Cl. 696, 699-700.

Even if the current version of the regulation could have been applied to the Veteran's claim, it would not support granting an earlier effective date of service connection. The statutory authority for 38 C.F.R. § 4.129 is 38 U.S.C. 1155, which relates to the evaluation of service-connected disabilities, not the granting of service connection. The current version of 38 C.F.R. § 4.129 sets a minimum initial evaluation for a mental disorder, caused by a highly stressful event, that results in the Veteran's release from active military service-with an implicit assumption that the mental disorder is service connected upon discharge, as this is a prerequisite for assigning an evaluation. The regulation does not negate the requirement to seek service connection for a mental disorder, and does not require or permit assignment of an earlier effective date of service connection in cases where the Veteran did not seek service connection for a mental disorder until more than one year after separation. See 38 U.S.C. §§ 1155, 5110.

In summary, the Board finds the weight of the evidence is against entitlement to an effective date earlier than November 30, 2020, for the grant of service connection for major depressive disorder with anxious distress, recurrent, moderate. The Board concludes the evidence does not support such entitlement and there is no doubt to be otherwise resolved. See 38 C.F.R. § 3.102; Gilbert, supra. Consequently, entitlement to an effective date earlier than November 30, 2020, is denied.

B. D. WATSON

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Picard

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.

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