BVA9500611 DOCKET NO. 91-39 434 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date prior to January 23, 1990 for a schedular 100 percent disability evaluation for a depressive-type major affective disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL The veteran and K. S. Fike ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel INTRODUCTION The veteran had active military service from May 1969 to October 1980. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an April 1990 rating decision of the North Little Rock, Arkansas Regional Office (hereinafter "the RO") which denied an increased disability evaluation for the veteran's service-connected depressive-type major affective disorder. In March 1991, the RO granted a 70 percent disability evaluation for the veteran's psychiatric disorder effective as of January 23, 1990. In November 1992, the Board remanded this appeal to the RO for further development of the record. In June 1994, the RO granted a schedular 100 percent disability evaluation for the veteran's psychiatric disorder effective as of January 23, 1990. The veteran has been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in failing to assign an effective date prior to January 23, 1990 for the award of a schedular 100 percent disability evaluation for his service-connected psychiatric disorder as he merited such an award since his discharge from active military service in October 1980. He contends that his psychiatric disability has always been productive of complete social and industrial impairment. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that a preponderance of the evidence is adverse to his claim for an effective date prior to January 23, 1990 for the award of a schedular 100 percent disability evaluation for a depressive-type major affective disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. A January 23, 1990 VA psychiatric examination for compensation purposes showed the veteran's depressive-type major affective disorder to be productive of essentially complete social and industrial impairment. 3. In June 1994, the RO granted a schedular 100 percent disability evaluation for the veteran's psychiatric disorder effective as of January 23, 1990. 4. The veteran's service-connected psychiatric disorder was not shown to be productive of complete social and industrial impairment prior to January 23, 1990. CONCLUSION OF LAW An effective date prior to January 23, 1990 for a schedular 100 percent disability evaluation for a depressive-type major affective disorder is not warranted. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.157(b)(1), 3.400 and Part 4, including § 4.3 and Diagnostic Code 9405 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, an additional remand in order to allow for further development of the record is not necessary. I. Historical Review The veteran's service medical records indicate that he was diagnosed as suffering from a severe chronic depressed-type major affective disorder. A September 1980 United States Air Force medical board report conveys that the veteran's psychiatric disorder was productive of severe impairment for social and vocational rehabilitation purposes. He was found to be unfit for further active military service. The report of a December 1980 VA examination for compensation purposes notes that the veteran exhibited an obsessive-compulsive personality disorder with depressive tendencies and a depressed-type major affective disorder in partial remission. In December 1980, the RO established service connection for a depressed-type major affective disorder evaluated as 30 percent disabling effective as of October 17, 1980. A December 1987 VA hospital summary relates that the veteran complained of paranoid ideation; a violent temper; frustration; family discord; and increasing vegetative symptoms including anhedonia, poor sleep and no libido. He reported having been unemployed since discharge from the United States Air Force. Impressions of a generalized anxiety disorder, depression and "rule out temporal lobe epilepsy" were advanced. In April 1988, the RO recharacterized the veteran's psychiatric disorder as a depressive-type major affective disorder evaluated as 50 percent disabling effective as of January 1, 1988. On January 23, 1990, the veteran underwent a periodic VA psychiatric examination for compensation purposes. The VA examiner observed that the veteran suffered from chronic depression controlled by medication; probable temporal lobe epilepsy; an interactive temporal lobe personality disorder; and a possible anxiety disorder and/or panic attacks. The doctor concluded that the veteran was not "able to function and to be employed gainfully at this time" due to his psychiatric and neurological disorders. In March 1991, the RO granted a 70 percent disability evaluation for the veteran's psychiatric disorder effective as of January 23, 1990. In January 1994, the veteran underwent further psychiatric evaluation. The VA examiner advanced impressions of recurrent major depression, a panic disorder and "rule out an organic affective disorder due to temporal lobe seizures." The doctor commented that the veteran's psychiatric disability rendered him unable to function in social and occupational situations. In June 1994, the RO granted a schedular 100 percent disability evaluation for the veteran's psychiatric disorder effective as of January 23, 1990. II. Earlier Effective Date The veteran tacitly advances that an earlier effective date is appropriate for the award of a schedular 100 percent disability evaluation for his service-connected psychiatric disorder as his symptomatology clearly met the schedular criteria for such an evaluation as of the date of his release from active military service. The Board observes that the assignment of effective dates for increased disability evaluations is governed by 38 U.S.C.A. § 5110 (West 1991) and 38 C.F.R. § 3.400 (1993). The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, 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. * * * (b)(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110 (West 1991). The pertinent provisions of 38 C.F.R. § 3.400 (1993) clarify that: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. * * * (o)(2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. The provisions of 38 C.F.R. § 3.157 (1993) direct further, in pertinent part, that: (a) General. Effective date of pension or compensation benefits, if otherwise in order, will be the date of receipt of a claim or the date when entitlement arose, whichever is the later. A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. (b) Claim. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen. (1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. ... The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. In order to apply the above authorities to the instant appeal, it is necessary to determine when it became ascertainable that the veteran's psychiatric disability was productive of 100 percent disability. The Schedule For Rating Disabilities directs that a 70 percent disability evaluation is warranted for a depressive-type major affective disorder when the veteran's ability to establish and maintain effective or favorable relationships with people is severely impaired and his psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation requires that attitudes of all contacts except the most intimate be so adversely affected as to result in the veteran's virtual isolation in the community and there be totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes (such as fantasy, confusion, panic, and explosions of aggressive energy) associated with almost all daily activities resulting in a profound retreat from mature behavior. The individual must be demonstrably unable to obtain or retain employment. 38 C.F.R. Part 4, Diagnostic Code 9405 (1993). The RO established the January 23, 1990 effective date for the veteran's 100 percent disability evaluation upon the findings of the January 23, 1990 VA psychiatric examination for compensation purposes which showed that the veteran's psychiatric disorder was productive of essentially complete social and industrial impairment. A review of the probative evidence dated prior to January 23, 1990 does not establish that complete social and industrial impairment was apparent at that time. VA treatment records dated between January and November 1988 convey that the veteran was receiving ongoing psychiatric care which consisted principally of family counseling. The veteran was reported by his family to be preoccupied at times with gardening and hunting. At a November 1988 VA psychiatric examination for compensation purposes, the veteran complained of stress, anxiety and a dislike of being around people. He reported that he liked to hunt, to fish, to watch television and to be around his family. The veteran was found to be oriented in four spheres and to exhibit an appropriate affect; a slightly depressed mood; fair judgment and insight; and no evidence of suicidal ideation or psychotic thought processes. The examiner advanced impressions of recurrent major depression and a possible generalized anxiety disorder. The doctor commented that although it was his opinion that the veteran would not be able to hold gainful employment in the near future, it was possible that he could obtain work with the Forest Service or in the outdoors. VA treatment records dated between December 1988 and January 1989 show that the veteran continued to receive family counseling. A December 1988 VA treatment entry states that the veteran complained of increased depression, impaired sleep, a reduced appetite and preoccupation with things. Treatment entries dated in April and August 1989 note that the veteran denied being depressed or preoccupied with either hunting or gardening. A November 1989 treatment entry states that the veteran felt estranged from his wife. In his October 1990 substantive appeal, the veteran advances that he should be given a 100 percent disability evaluation retroactively to October 1980 as he collapses mentally under any type of stress and has been able to work for only approximately three months since leaving active military service. At the December 1990 and September 1992 hearings on appeal, the veteran testified that he has been unable to converse while under stress or work since 1980. In a June 1991 written statement, the veteran avers that he was no better or worse than he was in 1980. He stated that he remained daily on "the edge of collapse." The Board has weighed the probative evidence including the veteran's testimony and argument on appeal. The clinical documentation dated prior to January 23, 1990 indicates that while the veteran's psychiatric symptomatology was significantly impairing, it was not productive of complete social and industrial impairment. Indeed, the report of the November 1988 VA psychiatric examination conveys that the veteran was possibly able to perform some forms of employment. Accordingly, the Board concludes that the proper effective date for the award of a schedular 100 percent disability evaluation for the veteran's depressive-type major affective disorder is January 23, 1990, the date of the VA psychiatric examination showing his essentially complete social and industrial impairment. Hence, the benefit sought on appeal is denied. ORDER Entitlement to an effective date prior to January 23, 1990 for the award of a schedular 100 percent disability evaluation for a depressive-type major affective disorder is denied. JEFF MARTIN E. W. SEERY IRVIN H. PEISER NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the Court within 120 days from the date of mailing of notice of the decision, provided that a notice of disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board.