Case A26040858

B.T. KNOPE · 2026 · Case ID: A26040858

MIXED

Summary

The veteran, who served in the Army from April 1981 to December 1983, appeals the denial of an increased rating for his psychiatric disorder and the effective date for a 70 percent rating. The Board reviewed the evidence, including VA examinations from May 2019, May 2021, August 2021, and February 2022, as well as a private examination from August 2023. Prior to August 3, 2021, the Board found the evidence supported a 50 percent rating, citing occupational and social impairment with reduced reliability and productivity, but not deficiencies in most areas. For the period from August 3, 2021, the Board found a 70 percent rating warranted, based on the August 2021 VA examination which noted symptoms such as depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty with relationships, and suicidal ideation, leading to occupational and social impairment with deficiencies in most areas. However, the Board denied a rating in excess of 70 percent, finding that neither the August 2021 nor the February 2022 VA examinations indicated total occupational and social impairment. The Board also gave little weight to the August 2023 private opinion due to internal inconsistencies regarding the veteran's level of disability. The Board granted an earlier effective date of August 3, 2021, for the 70 percent rating, as this was the earliest date the worsening of symptoms was factually ascertainable.

Rationale

August 2021 VA exam noted symptoms consistent with 70% rating; February 2022 VA exam noted symptoms consistent with 70% rating; Private opinion found 100% disability but was internally inconsistent

Service Branch

ARMY

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

220720-260368

Full Decision Text

Citation Nr: A26040858
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 220720-260368
DATE: April 30, 2026

ORDER

Entitlement to an earlier effective date of August 3, 2021, for the grant of an increased 70 percent rating for a depressive disorder, not otherwise specified, is granted.

Entitlement to a rating in excess of 70 percent for a depressive disorder, not otherwise specified, is denied.

FINDING OF FACT

1. Given the evidence of record, it is factually ascertainable that the Veteran meets the 70 percent criteria for his psychiatric disorder from August 3, 2021, but no earlier.

2. During the period on appeal, the Veteran's psychiatric disorder was manifested by symptoms of depressed mood, isolation, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation and intermittent inability to perform activities of daily living; however, it was not manifested by total occupational and social impairment.

CONCLUSION OF LAW

1. From August 3, 2021, the criteria for entitlement to a rating of 70 percent, but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.130, DC 9433.

2. During the period on appeal, the criteria for a rating in excess of 70 percent for a depressive disorder have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9433.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Army, on active duty from April 1981 to December 1983.

This claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2022 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2022, the Veteran submitted a timely VA Form 10182, electing the Hearing docket. In June 2023, he testified before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

The Board notes the June 2023 hearing covered several issues in addition to the one adjudicated here. However, these issues, an increased rating for the Veteran's psychiatric disorder covering another rating period, and entitlement to service connection for two disabilities are docketed in separate AMA appeal streams and will be addressed in separate Board decisions.

As the Veteran selected the hearing lane, the evidence before the Board includes evidence submitted prior to the June 28, 2022, rating decision, evidence submitted at the June 2023 Board hearing, and evidence submitted 90 days thereafter, insofar as it refers back to the period on appeal. If the Veteran has submitted evidence outside of those evidentiary windows, the Board has not considered it. Any evidence submitted that indicates a worsening of symptoms or the current status of the Veteran's disability post-decision, even if submitted during an evidentiary period, must refer back to the period on appeal or may be the basis of a supplemental claim.

Increased Ratings

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7.

Effective Dates

Effective
of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7.

Effective Dates

Effective dates for claims seeking an increased rating for already-service connected disabilities that are based on an original claim, or a claim for an increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is "feasibly ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). Swanson v. West, 12 Vet. App. 442 (1999).

In November 2021, the Veteran filed for entitlement to a total disability rating based on individual unemployability (TDIU). The RO interpreted this as an increased rating claim for his service-connected psychiatric disorder. As a result, the rating decision on appeal granted an increased rating for his psychiatric disorder as of the date of the TDIU application. Thus, the period on appeal begins November 24, 2020, which includes the one-year look-back period. Gatson v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

1. Entitlement to an earlier effective date prior to November 24, 2021, for the grant of a 70 percent rating for an acquired psychiatric disorder.

2. Entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder.

The Veteran contends that his psychiatric disorder is worse than presently rated. After a review of the evidence, the Board finds that a 70 percent rating is warranted from August 3, 2021, however, a rating in excess of 70 percent is not for application.

In a May 2021 rating decision, the Veteran was granted service connection for persistent depressive disorder, rated as 50 percent disabling under DC 9433. In the June 2022 rating decision on appeal, he was granted a 70 percent rating from November 24, 2021. The General Rating Formula for Mental Disorders, including DC 9433, applies the following:

" A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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.

" A 70 rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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); and an inability to establish and maintain effective relationships.

" A 100 percent rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name.

38 C.F.R. § 4.130, DC 9433, General Rating Formula for Mental Disorders.

While the date of claim is November 24, 2021, the Board notes that
circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships.

38 C.F.R. § 4.130, DC 9433, General Rating Formula for Mental Disorders.

While the date of claim is November 24, 2021, the Board notes that the period on appeal includes a one-year look-back period. After a review of the evidence, the Board finds that a 70 percent rating is warranted from August 3, 2021, the date it is factually ascertainable the Veteran's psychiatric disorder worsened. However, a rating in excess of 70 percent for his psychiatric disorder is not warranted.

The Board acknowledges the Veteran was diagnosed with PTSD during an August 2021 examination. However, he is not separately service-connected for that disorder. Moreover, entitlement to service connection for PTSD has been adjudicated in separate rating decisions and has been the subject of a prior appeal to the Board. In this case, it was not contemplated in the rating decision on appeal and was not listed in the Veteran's VA Form 10182. Thus, the Board will not address it. Regardless, the August 2021 VA examiner determined that the Veteran's psychiatric symptoms overlap, and differentiating between his PTSD and depressive disorder is not possible.

Prior to August 3, 2021

Prior to August 3, 2021, the Veteran's psychiatric disorder is rated as 50 percent disabling.

Turning to the medical evidence of record, the Veteran underwent a VA examination in May 2019. Here, he was diagnosed with persistent depressive disorder. He reported near constant depressive episodes, and worsening nightmares. Upon examination, the VA examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. He presented as adequately groomed, maintained eye contact, and readily responded to questions in an open manner. His mood was depressed, affect subdued, with adequate insight and judgment. The examiner observed no psychosis, full orientation, and he denied thoughts of harm to self and/or others. Overall, the May 2019 VA examiner opined that his psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity.

Next, the Veteran underwent a VA examination in May 2021. Here, he was again diagnosed with persistent depressive disorder. He reported living with his fiancée of 15 years, although they do not do any activities together. Further, he reported spending most of the time in bed watching television, not seeking friendships and dealing with anger. However, he reported getting along well with his son and daughter. Upon examination, the VA examiner noted symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work relationships, difficulty in adapting to stressful circumstances, and impaired impulse control. The examiner noted he arrived on time, appeared clean with adequate hygiene. He responded minimally to conversation, although his speech was fluid and logical with no impairment. There was no evidence, according to the examiner, of delusional or disorganized thought content. The Board notes the Veteran reported occasional thoughts of suicide, however his fiancée was noted to be a barrier against such thoughts. The examiner opined that these thoughts resulted in a low acute risk of suicide, and he was encouraged to discuss such thoughts with his VA clinicians. Taking these symptoms into account, the May 2021 VA examiner opined that his psychiatric disorder caused occupational and social impairment with reduced reliability and productivity.

Overall, the VA examinations of record during this period indicate the Veteran's psychiatric symptoms manifested in occupational and social impairment with reduced reliability and productivity; occupational and social impairment, with deficiencies in most areas, was not shown.

The Veteran submitted a private examination in April 2021, as part of a separate appeal before the Board. Here, Dr. Q.A-S interviewed him in January 2021. According to the private clinician, the Veteran presented as fully oriented, mood, affect flattened and mildly anhedonic. He reported poor sleep, having night sweats, and a good appetite. Upon examination, he had moderately severe levels of depression, and at times having suicidal thoughts. He reported chronic irritability, less interest, lost interest in sex, considerable issues with anxiety and trauma. Overall, Dr. Q.A-S. opined that his psychiatric symptoms resulted in a 50 percent disability. Given the above, the Board finds that a rating in excess of 50 percent for the Veteran's psychiatric disorder prior to
as part of a separate appeal before the Board. Here, Dr. Q.A-S interviewed him in January 2021. According to the private clinician, the Veteran presented as fully oriented, mood, affect flattened and mildly anhedonic. He reported poor sleep, having night sweats, and a good appetite. Upon examination, he had moderately severe levels of depression, and at times having suicidal thoughts. He reported chronic irritability, less interest, lost interest in sex, considerable issues with anxiety and trauma. Overall, Dr. Q.A-S. opined that his psychiatric symptoms resulted in a 50 percent disability. Given the above, the Board finds that a rating in excess of 50 percent for the Veteran's psychiatric disorder prior to August 3, 2021, is not warranted.

From August 3, 2021

Next, the Board finds that a higher rating from August 3, 2021, is factually ascertainable based on the results of a VA examination.

Specifically, at the August 2021 VA examination, the Veteran was diagnosed major depressive disorder and posttraumatic stress disorder (PTSD). However, the examiner was unable to differentiate symptoms attributable to each diagnosis. Upon examination, the examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and suicidal ideation. The Veteran reported additional symptoms of irritability, appetite and weight disturbance, fatigue, difficulty thinking, concentrating and making decision, and aggressive ideation. Overall, the VA examiner opined that the Veteran's psychiatric symptoms caused occupational and social impairment with deficiencies in most areas.

Given the results of the August 2021 VA examination, the Board finds it factually ascertainable that the Veteran's psychiatric symptoms are most consistent with a 70 percent rating from the date of the examination. Indeed, the VA examiner noted his psychiatric disorder causes occupational and social impairment with deficiencies in most areas.

Next, the Veteran underwent a VA examination in February 2022. Here, he was again diagnosed with PTSD and a depressive disorder, not otherwise specified. However, the examiner was not able to differentiate symptoms between each disorder. Upon examination, the VA clinician noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. He presented with fair grooming, was cooperative but with poor eye contact and some psychomotor slowing. His speech was somewhat pressured, thoughts logical, sequential and goal-directed for the most part. He denied suicidal or homicidal ideation or intent, while also denying auditory or visual hallucinations. Overall, the February 2022 VA examiner opined that his psychiatric symptoms caused occupational and social impairment with reduced reliability and productivity

Overall, the reports from the August 2021 and February 2022 VA examiners indicate that a 70 percent rating, but no higher, is warranted. Indeed, neither VA examiner opined that the Veteran's psychiatric symptoms caused total occupational and social impairment.

The evidence of record also includes a private medical examination, dated August 2023. Here, Dr. Q.A-S. examined the Veteran and diagnosed him with PTSD and a depressive disorder. Further, the private clinician opined that he is totally disabled due to his psychiatric disorder from November 2021. In support, Dr. Q.A-S. noted his inability to perform activities of daily living, gross impairment in mood and impaired impulse control. Moreover, the private clinician stated the Veteran displays marked occupational and social impairment with deficiencies in most areas due to recurrent suicidal ideation, periodically impaired impulse control and depression. However, the private examiner also acknowledged that the Veteran had improved since his August 2021 VA examination.

Here, the Board places little probative value on the August 2023 private medical opinion as it is internally inconsistent. Specifically, Dr. Q.A-S. on the one hand opines that the Veteran has been 100 percent disabled due to his psychiatric disorder, but in the following paragraph explains that his symptoms cause "occupational and social impairment with deficiencies in most areas" consistent with a 70 percent rating. Indeed, the private examiner notes the Veteran has improved since August 2021.

The evidence of record also includes VA treatment notes during the period on appeal. However, these do not show the Veteran's symptoms cause total occupational and social impairment during this period. For example, in February and June 2022, he presented for VA treatment. During both appointments, he exhibited full orientation, denied any hallucinations, had normal
as it is internally inconsistent. Specifically, Dr. Q.A-S. on the one hand opines that the Veteran has been 100 percent disabled due to his psychiatric disorder, but in the following paragraph explains that his symptoms cause "occupational and social impairment with deficiencies in most areas" consistent with a 70 percent rating. Indeed, the private examiner notes the Veteran has improved since August 2021.

The evidence of record also includes VA treatment notes during the period on appeal. However, these do not show the Veteran's symptoms cause total occupational and social impairment during this period. For example, in February and June 2022, he presented for VA treatment. During both appointments, he exhibited full orientation, denied any hallucinations, had normal affect range, intact judgment and insight, with no evidence of thought content disorder or confusion. In November 2021, he presented as awake, alert and fully oriented, with intact judgment and insight.

Lastly, the evidence also includes testimony from the Veteran before the Board in June 2023. Here, he testified experience sadness, the feeling of being followed, paranoia, auditory hallucinations, being afraid, and suicidal ideation that limits his social functioning. He reported staying at home and not liking being around people, especially men. However, he also testified of living with a longterm significant other, as well as good relationships with his son and daughter and grandchildren.

The Board finds that the medical evidence of record, including VA and private examinations, and VA treatment records, fail to show that a 100 percent rating is warranted for the Veteran's psychiatric disorder. Here, the Board acknowledges that he exhibited suicidal ideation, paranoia and auditory hallucinations, which can be symptoms of total occupational and social impairment.

However, none of the symptoms in the rating criteria are "tripwires" for a 100 percent rating. Rather, it is the overall disability picture that is controlling. As was mentioned above, the Veteran has been generally cooperative, engaging, and thoughtful, as indicated during his VA examinations. Further, he was casually, but appropriately dressed, with grooming and hygiene well attended. For a 100 percent rating to be warranted, the Veteran would not be capable of such independent living, which he clearly displayed during the period on appeal.

Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). Thus, the Board has also considered the extent to which there are other indications of total occupational and social impairment.

In this regard, it is clear that the Veteran's depressive disorder, not otherwise specified, has some impact on his social and occupational functioning. Specifically, he testified that he is isolated from others, especially men, and prefers to be at home. Nevertheless, the evidence does not indicate that a total disability rating is warranted during this period. Indeed, while he reports isolation he also testified that he lives with his longterm partner, and enjoys visits from his children and grandchildren. Given such evidence, the Board finds the evidence demonstrates he does not display total social and occupational impairment, even when factoring in other relevant criteria outside of the rating code. See id.

In considering the appropriate disability rating for the Veteran's acquired psychiatric disability, the Board has also considered the statements from the Veteran that his acquired psychiatric disorder is worse than the rating he currently receives, including that he struggles with isolation and suicidal ideation. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).

Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

On the other hand, such competent evidence concerning the nature and extent of the Veteran's depressive disorder has been provided by the medical personnel who have examined him during the current appeal and have rendered pertinent opinions in conjunction with their evaluations. The medical findings directly address the criteria under which his depressive disorder
from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired psychiatric disability according to the appropriate DCs. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

For the foregoing reasons, the Board finds that the evidence is persuasively against a finding of a total disability rating, and as such, a rating in excess of 70 percent for the Veteran's psychiatric disorder is denied. However, an earlier effective date of August 3, 2021, is factually ascertainable based on the findings of the August 2021 VA examiner, and to that extent, the appeal is granted.

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.

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board McDonald, Thomas K.

Analyze in VA Law Explorer