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Learn from a veteran's BVA decision: why higher ratings for depression and radiculopathy were denied, the importance of effective dates, and how to submit evidence correctly.
The Veteran served from April 1979 to April 1999. In May 2020, they filed a supplemental claim seeking increased disability ratings for several conditions: their right knee (rated at 10%), left upper extremity radiculopathy (rated at 30%), and major depressive disorder (rated at 50%). They also claimed Special Monthly Compensation (SMC) based on housebound criteria and service connection for obstructive sleep apnea (OSA). The initial VA office (AOJ) denied the increased rating claims in May 2020. The Veteran then requested a Higher-Level Review (HLR) in June 2020. For the OSA claim, the HLR decision was issued in November 2020, upholding the denial. However, for the other claims (increased ratings and SMC), the HLR reviewer identified a "duty to assist" error, meaning the VA hadn't gathered all necessary evidence. These claims were then transferred back to the Supplemental Claim process for further development. In June 2021, the AOJ issued a new supplemental claim decision. At this point, the VA granted a 70% disability rating for the Veteran's major depressive disorder, but with an effective date of March 12, 2021. They also granted Total Disability based on Individual Unemployability (TDIU) effective August 25, 2017. The Veteran disagreed with the March 12, 2021 effective date for the 70% depression rating, arguing it should have been earlier. They appealed this, along with the denials for left upper extremity radiculopathy and OSA, to the Board of Veterans' Appeals (BVA) via a Direct Review docket. The BVA's decision was a mix of outcomes. The Board *denied* the Veteran's request for a disability rating higher than 50% for major depressive disorder *prior to March 12, 2021*. This means the 70% rating stands, but the earlier effective date was denied. They also *denied* a rating higher than 30% for left upper extremity radiculopathy. However, the BVA *granted* Special Monthly Compensation (SMC) at the aid and attendance or housebound level, finding that a single service-connected disability prevented the Veteran from maintaining substantially gainful employment. Finally, the BVA *remanded* (sent back for more work) the claims for service connection for obstructive sleep apnea and higher ratings for both the right and left knee conditions. This means these issues will get further review and development by the VA.
To have won the claim for a higher rating for major depressive disorder prior to March 12, 2021, the Veteran would have needed to submit compelling evidence demonstrating that their symptoms and functional impairment met the 70% criteria *before* that specific date. The Board explicitly stated that earlier VA exams (September 2017 and May 2018) only supported a 50% rating. Therefore, the winning strategy would involve obtaining a retrospective medical opinion from a mental health professional. This opinion should review all available medical records, lay statements, and potentially conduct a new examination, to conclude that, based on the evidence, the Veteran's mental health condition was at the 70% level of severity (e.g., with symptoms like suicidal ideation, near-continuous panic/depression affecting function, or inability to maintain effective relationships) at some point *before* March 12, 2021. This opinion would need to clearly articulate *why* the earlier symptoms met the higher rating criteria, directly addressing the specific symptoms listed for a 70% rating under Diagnostic Code 9434. For the left upper extremity radiculopathy, the denial was based on the finding of "no more than moderate incomplete paralysis." To secure a rating higher than 30%, the Veteran would need to provide medical evidence that clearly shows a more severe level of impairment. This could include a detailed neurological examination from a specialist (neurologist or orthopedist) that documents objective findings such as severe muscle weakness, significant sensory loss, or more extensive paralysis. The medical report should specifically describe the impact of the radiculopathy on the Veteran's ability to use their left upper extremity, linking these findings directly to the criteria for a higher rating under Diagnostic Code 8510. Lay statements from the Veteran or family members describing the daily functional limitations caused by the radiculopathy (e.g., dropping objects, inability to perform certain tasks, constant pain affecting movement) would also be crucial to corroborate the medical findings and paint a complete picture of the severity. Finally, understanding the appeal process and evidence submission rules is critical. The Board noted it could only consider evidence up to specific dates for different claims (June 2020 for OSA, June 2021 for others) due to the Direct Review docket election. Any evidence submitted *after* these dates could not be considered. A winning strategy involves ensuring all relevant evidence is submitted *before* the evidentiary record closes for the chosen appeal path. If new evidence emerges later, filing a Supplemental Claim (VA Form 20-0995) is the correct path to ensure it's considered. For the remanded claims, the Veteran should proactively gather and submit any new medical evidence or lay statements related to OSA and their knee conditions to the VA office handling the remand, as they *will* consider new evidence.
To win an increased disability rating, you must provide specific medical evidence that clearly shows your symptoms and functional impairment meet the criteria for the *higher* rating level during the entire period you are claiming, especially when dealing with specific effective dates.
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