Citation Nr: 1325537 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 09-22 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for posttraumatic stress disorder (PTSD), prior to April 23, 2012. 2. Entitlement to an initial disability rating in excess of 70 percent for PTSD since April 23, 2012. 3. Entitlement to an effective date earlier than May 23, 2008, for the grant of service connection for PTSD. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, granting service connection for PTSD and assigning an initial 30 percent disability rating, effective May 23, 2008. A May 2013 rating decision increased the initial disability rating to 70 percent, effective April 23, 2012. The issue of entitlement to TDIU has been raised by the record and added to the issues listed on the title page. It is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to April 23, 2012, the Veteran's PTSD was manifested by difficulty sleeping, irritability, hyperarousal, hypervigilance, impaired concentration, occasional panic attacks, diminished interest and social detachment resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Prior to April 23, 2012, the Veteran's PTSD did not cause occupational and social impairment, with reduced reliability and productivity; there was no evidence of flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty understanding complex commands, impaired short-term memory, impaired judgment, impaired abstract thinking, disturbances of motivation, or difficulty establishing and maintaining effective work and social relationships attributed to his PTSD. 3. Since April 23, 2012, the Veteran's PTSD is manifested by sleep disturbance, irritability, nightmares, recurrent and distressing recollections, anger outbursts, feelings of social detachment or estrangement and panic attacks occurring on a weekly basis and does not cause total occupational and social impairment; there is no evidence of 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name attributed to his PTSD. 4. The earliest evidence of a claim of entitlement to service connection for PTSD was received by VA on May 23, 2008. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for PTSD prior to April 23, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2012). 2. The criteria for an initial disability rating in excess of 70 percent for PTSD since April 23, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.21, 4.130, Diagnostic Code 9411 (2012). 3. The criteria for the assignment of an effective date earlier than May 23, 2008, for the award of service connection for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The appeal arises from the Veteran's disagreement with the initial evaluation and assigned effective date following the grant of service connection for PTSD. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records, VA treatment records, and private treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Written statements from the Veteran and his wife are of record. VA examinations were conducted in August 2008 and April 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). These examinations are adequate as they are predicated on examinations of the Veteran and fully address the rating criteria relevant to evaluating his service-connected PTSD. There is no indication in the record that any additional evidence, including Social Security Administration records relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 at 486 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Analysis Increased Initial Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. 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, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the "present level" of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected PTSD is currently rated as 30 percent disabling prior to April 23, 2012, and as 70 percent thereafter under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is assigned when there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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); 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; memory loss for names of close relatives, own occupation or own name. In August 2008, the Veteran underwent VA psychiatric examination. He complained of difficulty sleeping with severe night sweats, irritability and problems with road rage. He also complained of diminished interest in participation in significant events, a sense of detachment from others, an exaggerated startle response, hypervigilance and difficulty concentrating. The Veteran was married one time and had one child. He had worked in construction for 30 years, retired in 2005, and was working part-time at the time of the examination. Examination results revealed the Veteran to be well oriented and normal in appearance and hygiene. His behavior was appropriate and his affect and mood appeared normal. His speech was also normal, as was his communication. His thought processes were assessed as normal with no impaired abstract thinking and his judgment was within normal limits. He reported occasional panic attacks with tachycardia, sweating and feelings of having a heart attack. He reported that he had suspiciousness and that he did not trust anyone. He denied delusions, hallucinations or ideas of reference. He had some obsessional rituals which interfered with people. His memory was intact. He felt that he had poor concentration at times. The Veteran denied suicidal or homicidal ideation. The diagnosis was PTSD, mild. The examiner opined that the Veteran's PTSD symptoms were not severe enough to interfere with social and occupational functioning or to require continuous medication. The examiner also opined that he was able to manage his own benefits with no difficulty in performing activities of daily living. The assessed GAF score was 60, indicative of moderate impairment. In a February 2009 written statement, the Veteran's wife indicated that she had been married to the Veteran since 1968 and that he had become progressively more aggressive when dealing with other people and was an aggressive driver. She stated that he was constantly tired because he did not sleep well and was very restless. He had little patience for her or others. They rarely went to movies. Aside from his anger, his wife described the Veteran as unemotional and unsentimental about birthdays, holidays and special occasions. On April 23, 2012, the Veteran again underwent VA psychiatric examination. The examiner noted that he had had no psychiatric treatment at that time and was on no medication for his symptoms. He reported recurrent and distressing recollections of his stressor, recurrent distressing dreams and avoidant behavior. He had feelings of detachment or estrangement from others and a restricted range of affect. He also reported having sleep difficulty, irritability and anger outbursts, as well as difficulty concentrating, hypervigilance and exaggerated startle response. He had symptoms that included depressed mood, anxiety, panic attacks occurring weekly or less often, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting. He had impaired impulse control and had general feelings of restlessness and edginess, low energy and increased fatigue. The examiner assessed the Veteran's level of occupational and social impairment as causing occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with normal routine behavior and care and conversation. His current GAF score was 60, indicative of moderate impairment. Prior to April 23, 2012 Prior to April 23, 2012, the Veteran's PTSD was manifested by chronic sleep disturbance, irritability, anger outbursts, hyperarousal, and social detachment. Although he reported problems with irritability and social isolation during this period, he remained married to his first wife. There is no evidence to show flattened affect, circumstantial, circumlocutory or stereotyped speech, or panic attacks occurring more than once a week. Nor is there evidence of any difficulty understanding complex commands, disturbances in motivation or mood, nor any impairment in memory, judgment, or abstract thinking during this period. Although the Veteran's wife states that he had become more aggressive and he asserts that he quit his full-time employment in October 2005 because of his PTSD symptoms and the stresses associated with his work and co-workers, the August 2008 examiner assessed the Veteran's PTSD symptoms as mild and provided a GAF score indicative of no more than moderate impairment. The examiner also specifically opined that the Veteran's PTSD symptoms were not severe enough to interfere with social and occupational functioning or to require continuous medication. The Board finds that the medical evidence, which directly addresses the criteria under which PTSD is evaluated, is far more probative than the Veteran's own assessments as to severity. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Significantly, the Veteran did not seek treatment during this period and the examiner opined that his symptoms did not require continuous medication. The criteria for an initial disability rating in excess of 30 percent for PTSD prior to April 23, 2012, have not been met; there is no doubt to be resolved and an initial disability rating in excess of 30 percent for PTSD prior to April 23, 2012, is not warranted. Since April 23, 2012 Since April 23, 2012 there are no PTSD symptoms manifested by impaired thought processes; suicidal ideation; obsessional rituals; illogical, irrelevant or obscure speech; near-continuous panic or depression that affect the Veteran's ability to function independently, appropriately and effectively; spatial disorientation; or neglect of personal appearance and hygiene. Although the Veteran and his wife contend that he has problems with irritability and anger outbursts, he denied any relevant legal or behavioral history at the time of the April 2012 VA examination. Moreover, the examiner, while noting that the Veteran's history of having had confrontations on the job due to his irritability and being easily agitated, nonetheless specifically found his PTSD symptoms caused no more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily, with normal routine behavior and care and conversation. Likewise, the VA examiner did not indicate that there was any evidence of any inability to perform activities of daily living, including maintenance of minimal personal hygiene. There is no evidence of any hallucinations or delusions during this period. The VA examiner assigned a GAF score of 60, indicative of moderate impairment. Despite the Veteran's feelings of social detachment and estrangement, the evidence of record indicates that he maintains a relationship with his wife of many years. The criteria for an initial disability rating in excess of 70 percent for PTSD since April 23, 2012, have not been met; there is no doubt to be resolved and an initial disability rating in excess of 730 percent for PTSD since April 23, 2012, is not warranted. Extraschedular Consideration The evidence does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected PTSD are inadequate at any time during the pendency of his appeal. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule show that the rating criteria reasonably describes the Veteran's disability levels and symptomatology for his PTSD. As such, it cannot be said that the available schedular evaluations are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Earlier Effective Date Claim The RO has assigned an effective date of May 23, 2008 for the award of service connection for PTSD, the date that VA received the Veteran's initial service-connection claim. The Veteran contends that the effective date should be June 1, 2000, when he claims he first sought VA assistance primarily for his hearing problems. He indicates that he was not provided adequate assistance at the time. He further contends that had he been provided effective assistance, his disability would have been established from that date. In support of his contentions, the Veteran provided a November 2000 VA letter advising him of his successful enrollment in the VA health care system. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a)(West Supp 2012); 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. 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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). There is no evidence of record that the Veteran has ever sought treatment for his PTSD, let alone prior to May 23, 2008. Both the August 2008 and April 2012 VA examiners specifically noted that he was not under treatment for PTSD at the time of the examinations and there are no VA treatment records of such at any time. Regardless, the mere existence of medical evidence which refers to a disability does not establish an intent on the part of a veteran to seek service connection for that disorder. See Ellington v. Nicholson, 22 Vet. App. 141 (2007). And, even if he had sought treatment (which he did not), a Veteran's attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet. App. 327, 330 (1993). There is no evidence of record that can be identified as a communication from the Veteran which may reasonably be considered to be a formal or informal claim of entitlement to service connection for PTSD prior to the claim received on May 28, 2008. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). In fact, the Veteran did not file any relevant correspondence with VA at any time prior to the date of his May 2008 claim. The governing statutory and regulatory provisions preclude the assignment of an earlier effective date. The criteria for an effective date earlier than May 23, 2008, for the award of service connection for PTSD, have not been met; there is no doubt to be resolved and an effective date earlier than May 23, 2008, is not warranted. ORDER An initial disability rating in excess of 30 percent for PTSD, prior to April 23, 2012, is denied. An initial disability rating in excess of 70 percent for PTSD, since April 23, 2012, is denied. An effective date prior to May 23, 2008, for the award of service connection for PTSD is denied. REMAND A TDIU claim is part of an increased rating claim when it is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran contends that his PTSD symptoms made him unable to maintain full-time employment. A TDIU rating may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a)(2012). The Veteran is schedularly eligible for TDIU consideration from April 23, 2012, the effective date of the 70 percent rating for PTSD. However, he alleges that he has been unable to secure substantially gainful employment for the entire period under review. Although the 2008 and 2012 VA examiners found his PTSD symptoms caused no more than moderate impairment, throughout the pendency of his appeal he has been service-connected for other disabilities that could, solely or in the aggregate, render him unemployable. The issue of entitlement to TDIU based on all the Veteran's service-connected disabilities must be considered on an extraschedular basis prior to April 23, 2012, and on a scheduler basis thereafter. See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); 38 C.F.R. § 4.16(b). The Veteran must be provided with notice with respect to the TDIU claim. 38 C.F.R. § 3.159 (2012). The record suggests the Veteran receives VA treatment for his service-connected disabilities, but no records dated since September 2009 have been associated with the claim folder, nor are any such records available via the Virtual VA system. Likewise, the record indicates that he also receives ongoing private treatment for his service-connected disabilities. These VA and private treatment records may be relevant to the Veteran's claim and must be obtained. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with appropriate notice regarding his TDIU claim. 2. Obtain VA treatment records since September 2009 from the Washington, DC, VAMC for the Veteran. 3. Ask the Veteran to either submit, or to authorize VA to obtain, private treatment records for his service-connected disabilities. 4. Schedule the Veteran for a VA examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. After examining the Veteran, the examiner must identify each impairment or symptom found as a result of the service-connected disabilities (including PTSD, bilateral hearing loss, tinnitus, diabetes, peripheral neuropathy of the bilateral lower extremities and residuals of a left ankle strain) and state the occupational impact that each impairment or symptom has on the Veteran's ability to secure or follow substantially gainful employment. The examiner must state the functions which would be difficult or impossible to do as a result of the associated service-connected symptom or impairment. Further, the examiner must state the impact that the Veteran's service-connected impairments and symptoms both individually and as a whole have on his ability to accomplish sedentary and manual employment. In offering this opinion, the examiner must also take into consideration the Veteran's level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice-connected disabilities. 5. Then, adjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs