Citation Nr: 1324511 Decision Date: 08/01/13 Archive Date: 08/13/13 DOCKET NO. 13-13 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an effective date earlier than March 7, 2012 for the assignment of a 100 percent evaluation for service-connected posttraumatic stress disorder. REPRESENTATION Appellant represented by: Kenneth M. Carpenter, Attorney ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel (The issues of entitlement to an effective date prior to September 26, 2006 for the grant of service connection for posttraumatic stress disorder, entitlement to an initial rating in excess of 50 percent prior to March 7, 2012 for posttraumatic stress disorder, and entitlement to a total disability rating based on unemployability due to service-connected disability are the subjects of a separate Board decision.) INTRODUCTION The Veteran served on active duty from January 1968 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Wichita, Kansas. FINDINGS OF FACT 1. On March 7, 2012, a letter from the Veteran's representative was received by VA, which the RO interpreted as a claim for entitlement to an increased evaluation for posttraumatic stress disorder (PTSD), then evaluated as 50 percent disabling. A prior earlier claim for an increased initial evaluation was filed; however, that claim was withdrawn by the Veteran in September 2011. 2. In a September 2012 rating decision, the RO assigned a 100 percent evaluation for PTSD, effective March 7, 2012. 3. The preponderance of the evidence does not show a factually ascertainable increase in the Veteran's PTSD symptomatology indicating that his disability more closely approximated total occupational and social impairment, to include 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; memory loss for names of close relatives, own occupation, or own name during the one year period prior to March 7, 2012. CONCLUSION OF LAW The criteria for an effective date prior to March 7, 2012 for the assignment of a 100 percent disability evaluation for PTSD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157, 3.400, 4.130, Diagnostic Code 9411 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a) (2012). The Veteran has appealed with respect to the propriety of the assigned effective date for the 100 percent disability rating to his PTSD from the award of the increased rating. "The statutory scheme contemplates that once a decision awarding service connection, a disability rating, and effective date made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for an increased rating for PTSD was granted and an effective date was assigned in the September 2012 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the effective date for his 100 percent disability rating, no additional notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). As explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim. Therefore, no further action is required to comply with VA's duties to notify and assist. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). Earlier Effective Date Generally, the effective date of an evaluation and award of compensation for an increased evaluation is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). 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) (2012). An informal claim is a "communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims- formal and informal- for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim 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. 38 C.F.R. § 3.157(b). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. Id. The Veteran claims that an earlier effective date is warranted for the 100 percent rating assigned for his service-connected PTSD. Specifically, he asserts that this rating should be assigned from September 26, 2006, which it is argued is the date of his reopened claim. It is argued that the claim was continuously prosecuted since that date. As reflected in the evidence of record, in September 1985, the Veteran submitted a claim of entitlement to service connection for PTSD, which was ultimately denied by the Board in June 1986. That decision is final. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1100 (2012). The Veteran submitted a claim to reopen the issue of entitlement to service connection for PTSD in October 1986. The Board denied this claim in October 1987. That decision is final. Id. In September 2006, the Veteran submitted a claim to reopen the issue of entitlement to service connection for PTSD. In August 2007, the Veteran's claim was reopened, service connection was granted for PTSD, and a 50 percent rating was assigned thereto, effective September 26, 2006. The Veteran submitted a notice of disagreement, seeking a higher initial rating for his service-connected PTSD. In September 2011, the Veteran withdrew his claim for a higher initial rating for his service-connected PTSD. On March 7, 2012, the RO received a letter from the Veteran's representative regarding an initial rating in excess of 50 percent for PTSD. The RO interpreted this document as a claim for an increased evaluation for PTSD. In a September 2012 rating decision, an increased rating for PTSD from 50 percent to 100 percent disabling was granted, effective March 7, 2012, the date of his claim. The Veteran submitted a notice of disagreement in January 2013, and a statement of the case was issued in March 2013. A substantive appeal was received in May 2013. As noted above, under the general rule, the effective date is the later of the date of claim or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). Here, the date of receipt of the claim as determined by the RO was March 7, 2012. A review of the evidence of record indicates that no other documents or communications of record may be interpreted as a formal or informal claim for an increased evaluation. See 38 C.F.R. § 3.1(p), 3.155(a); see also Servello, 3 Vet. App. at 198. As noted, the Veteran withdrew his claim for a higher initial rating for his service-connected PTSD in September 2011. A review of the claims file also indicates that there are no VA reports of examination or hospitalization that may be accepted as an earlier claim for an increased evaluation. See 38 C.F.R. § 3.157(b). Contrary to the Veteran's contentions, the record shows that the date of the Veteran's claim for an increased evaluation is March 7, 2012. Thus, under the general rule, the earliest possible effective date would be the date of the claim for an increased rating, March 7, 2012. 38 C.F.R. § 3.400(o)(1). Under the exception, however, an earlier effective date may be granted on the date of a factually ascertainable increase in PTSD, if such increased occurred within the one-year period preceding the date of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). For the purposes of this appeal, the Board must determine whether the evidence of record, to specifically include evidence dated within one year preceding the March 7, 2012 claim, indicates a factually ascertainable increase in the Veteran's PTSD that warrants a 100 percent evaluation. See Hazan v. Gober, 10 Vet. App. 511 (1997) (finding that when considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application.); see also, 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400(o), 4.1, 4.2 (2012). A 100 percent disability rating for PTSD 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that "any suggestion that the Board was required . . . to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation"). The factors listed in the rating formula are to serve as "examples" of conditions that warrant a certain rating, and not an exhaustive list. Id. Accordingly, VA is required to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, not just those listed in the regulation. Id. at 443. In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See DSM-IV; Carpenter v. Brown, 8 Vet. App. 240 (1995). For example, a GAF score of 71 to 80 reflects that if symptoms are present, they are transient and expectable reactions to psychosocial stressors, with no more than slight impairment in social, occupational, or school functioning. A GAF score of 61-70 reflects some mild symptoms, such as depressed mood and mild insomnia, or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and has some meaningful interpersonal relationships. A GAF score of 51-60 indicates moderate symptoms, such as flat affect, circumstantial speech, occasional panic attacks, or moderate difficulty in social, occupational or school functioning, such as having few friends or having conflicts with peers or co-workers. A GAF score of 41 to 50 is assigned where there are serious symptoms, such as suicidal ideation, severe obsessional rituals, frequent shoplifting, or any serious impairment in social, occupational, or school functioning, such as no friends, unable to keep a job. DSM-IV at 46-47. A GAF of 31-40 is defined as exhibiting some impairment in reality testing or communication, such as speech is at times illogical, obscure, or irrelevant, or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, such as a depressed man that avoids friends, neglects family, and is unable to work. DSM-IV at 46-47. The Evidence Records from the Lansing Correctional Facility dated in 2011 and 2012 have been reviewed. They show continuing treatment in the mental health clinic for the Veteran's psychiatric disability. In February 2011, the Veteran reported the only major problem he had was pain from a back disorder. He reported he had good social functioning. The examiner noted that the Veteran was functioning well and doing well at his job in the library. He was oriented times four and reported no depression or anxiety. His sleep was adequate and his appetite was good. He was appropriately groomed, and his insight was good. His intellectual assessment was above average and his affect was primarily appropriate. No thought disorder was noted and he had no eating or sleeping disorder. His mood was calm and his speech was normal. There was no memory impairment, and no social or occupational impairment. There was no homicidal or suicidal ideation. The diagnosis was, major depressive disorder, recurrent in full remission. The GAF score assigned was 80. In March 2011, the findings in February 2011 were continued. In April 2011, it was noted that no mental health symptoms were noted. The examiner noted that the Veteran presented with no significant changes and no significant symptoms of depression, anxiety, or other mood disturbance. He was oriented in all spheres, with a flattened affect. No other abnormal findings were noted. The diagnosis was recurrent major depressive disorder, in full remission. The GAF score assigned was 80. Later in April 2011, the Veteran's affect was noted to be appropriate and the same diagnosis was offered, as well as the same GAF score. Follow up in May 2011, June 2011, July 2011, and August 2011 reported essentially the same findings. In September 2011, the Veteran reported having increasing depression. He denied suicidal or homicidal ideation, or having a psychosis. His speech was goal oriented, and grooming was adequate. Later in September 2011, he reported the depression had returned, and requested medication. Examination showed his mood was depressed. Recurrent and moderate major depressive disorder was diagnosed. The GAF score assigned was 51. In October 2011, the Veteran indicated that he had stopped taking Zoloft, after presenting with symptoms of anxiety/stress. He was oriented in all spheres and appropriately groomed, with good insight and a calm affect and mood. No thought disorder was noted. Speech and memory were normal. No social or occupational impairment was noted. There was no homicidal or suicidal ideation. The diagnosis was recurrent major depressive disorder, in full remission. The GAF score assigned was 71. In November 2011, similar findings were noted and the diagnosis was, recurrent major depressive disorder, in full remission. The GAF score assigned was 71. In December 2011, the Veteran reported that he was doing "ok" emotionally. He had lost his job in the library but continued to go there to read. He was oriented in all spheres and appropriately groomed, with a calm affect and mood. There was no social or occupational impairment found. The diagnosis was recurrent major depressive disorder, in full remission. The GAF score assigned was 71. In January 2012, there were no significant mental health issues. The diagnosis was recurrent major depressive disorder, in full remission. The GAF score assigned was 71. This finding was also shown later that same month, as well as in February 2012. In March 2012, the Veteran reported having no significant mental health problems. He was oriented in all spheres. He was appropriately groomed and his insight was fair. His affect and mood were calm and no thought disorder was noted. There was no social or occupational impairment shown, and no homicidal or suicidal ideation reported. The diagnosis was recurrent major depressive disorder, in full remission. The GAF score shown was 71. The Veteran was examined by VA in June 2012. The diagnosis was PTSD, with depression. The GAF score assigned was 35. The examiner noted that the Veteran had total occupational and social impairment. The Veteran reported that he no longer worked in the library, and he just sat in his room by himself. The Veteran had a depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, a flattened affect, impaired judgment, impaired abstract thinking, 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, suicidal ideation, impaired impulse control and intermittent inability to perform activities of daily living including maintenance of personal hygiene. Discussion Considering the totality of the evidence in light of the criteria noted above, an effective date prior to March 7, 2012, is not warranted for the assignment of a 100 percent rating for the Veteran's service-connected PTSD. As explained above, a 100 percent rating requires evidence of 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; memory loss for names of close relatives. Own occupation, or own name. Those delineated symptoms are not characteristics of the Veteran's PTSD prior to March 2012. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). Indeed, the evidence dated prior to March 2012 primarily shows that the Veteran was alert, oriented, and without significant deficiencies in thought, memory, concentration, or speech. The evidence also shows that the Veteran maintained social relationships. He reported having depression and anxiety; however, the preponderance of the evidence does not show that depression and anxiety resulted in an inability to function independently, appropriately and effectively. Significantly, private treatment records dated in the months prior to the assignment of the 100 percent rating, reveal that the Veteran presented with a calm and appropriate affect, a calm mood, and with virtually no psychiatric symptoms. The GAF scores assigned to the Veteran's service-connected PTSD likewise do not demonstrate a factually ascertainable increase in his PTSD symptomatology to warrant a 100 percent evaluation. Massey v. Brown, 7 Vet. App. 204, 207 (1994) (noting that a GAF score is highly probative, as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria). In the year prior to March 7, 2012, the GAF scores ranged from 51, indicating moderate symptoms or moderate difficulty in social and occupational functioning, to 80, indicating that if symptoms are present, they are transient and expectable reactions to psychosocial stressors, with no more than slight impairment in social and occupational functioning. In addition to the medical evidence, the lay evidence offered by the Veteran in the form of his correspondence to VA, as well as the statement submitted by his sister in April 2012 have been considered. These lay statements are competent evidence as to observable symptoms. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, the lay statements do not show that the Veteran's service-connected PTSD met the criteria for a 100 percent disability rating in the year prior to March 2012. The preponderance of the evidence demonstrates that it is not factually ascertainable that the Veteran's service-connected PTSD warranted a 100 percent disability rating at any time prior to March 2012. Accordingly, the earliest possible date for a 100 percent evaluation for PTSD, is the date of receipt of the Veteran's claim, March 7, 2012. ORDER An effective date prior to March 7, 2012 for the assignment of a 100 percent evaluation for PTSD, is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs