Citation Nr: 1741998 Decision Date: 09/25/17 Archive Date: 10/04/17 DOCKET NO. 15-31 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective date earlier than August 1, 2013, for the grant of a 100 percent rating for (PTSD) (exclusive of a temporary total rating from May 6, 2013, to July 31, 2013). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey Counsel INTRODUCTION The Veteran served on active duty from March 1973 to March 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted an increased rating of 100 percent for PTSD, effective August 1, 2013. A previous rating assigned a temporary total hospitalization rating from May 16, 2013, to July 31, 2013. The Veteran testified before the undersigned at a March 2017 Travel Board hearing. The hearing transcript is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. In a July 2012 rating decision, the RO granted service connection and a 30 percent rating for PTSD. The Veteran did not file an appeal and the decision is final. 2. The earliest claim for increased rating for PTSD was received on June 19, 2013. 3. A factually ascertainable increase in the Veteran's PTSD is not shown during the one-year period preceding the receipt of the Veteran's claim on June 19, 2013. CONCLUSION OF LAW The criteria for an effective date prior to June 19, 2013, for the grant of a 100 percent rating for PTSD (exclusive of a temporary total rating from May 6, 2013, to July 31, 2013) have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist There is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C.A. § 5103A (c)(2). All records pertaining to the condition at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). In this case, the Veteran has indicated no such records and all pertinent records have been obtained. Analysis By way of background, in a July 2012 rating decision, the RO granted service connection for PTSD. A 30 percent evaluation was assigned, effective November 18, 2008. The Veteran did not appeal the evaluation assigned or the effective date. In June 2013, the Veteran filed a claim for an increased rating for his service-connected PTSD. In July 2013, the Veteran filed a claim for a temporary 100 percent rating for PTSD, due to his treatment in a 60-day in-patient PTSD program from May 2013 to July 2013. In an October 2013 rating decision, the RO granted a temporary 100 percent evaluation for PTSD, because of hospitalization over 21 days, effective from May 6, 2013 to July 31, 2013. The 30 percent evaluation was continued as of August 1, 2013. The temporary total convalescent rating is not part of the current appeal. In a February 2014 rating decision, the RO granted an increased rating of 100 percent for PTSD, effective August 1, 2013. The RO explained in the July 2015 statement of the case (SOC) that a review of the medical evidence showed that the Veteran's mental symptoms increased in severity starting in May 2013, when he voluntarily agreed to attend a VA inpatient domiciliary program. The RO also noted that a review examination in November 2013 confirmed the Veteran's mental symptoms warranted a 100 percent evaluation. The Veteran has appealed the effective date of the 100 percent rating, asserting that the date of the assignment of the 100 percent rating should be November 2008, the effective date of his grant of service connection for PTSD. See March 2014 claim for an earlier effective date, November 2014 notice of disagreement, and March 2017 Travel Board hearing transcript. The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. 38 U.S.C.A. § 5110 (b)(2) provides an exception to this general rule: "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." Thus, "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." See Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). As the Veteran did not file a notice of disagreement with the July 2012 RO rating decision, the July 2012 decision became final. The Veteran's date of claim for an increased evaluation for PTSD is June 19, 2013. As noted above, an earlier effective date is permitted for increased disability compensation if that disability increased during the one-year period before the filing of the claim, if evidence is found within that time period showing such an increase. As such, an increased rating for the Veteran's disability will be granted as early as June 19, 2012, if the evidence shows such an increase is warranted. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. All psychiatric disabilities, however, are evaluated under the General Rating Formula for Mental Disorders (general rating formula). Pursuant to the general rating formula, PTSD is rated 30 percent disabling 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), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or 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 effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms; a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The medical evidence of record does not show symptoms of PTSD that warrant a rating in excess of 30 percent prior to August 1, 2013 (between June 19, 2012 and July 31, 2013) (excluding the period of hospitalization from May to July 2013). In this regard, during VA treatment in April, May and July 2013, the Veteran endorsed symptoms of disturbances of motivation and mood in that he was consistently noted to display moderate to severe depression. He also demonstrated difficulty in establishing and maintaining effective work and social relationships due to his PTSD, in that he was determined by the Social Security Administration (SSA) to be disabled since November 2008, due in part to anxiety related disorders. However, at the time of his discharge from a voluntary VA in-patient program, which he attended from May to July 2013, it was noted that the Veteran had a supportive family, including his wife and adult children, and that he had a close relationship with his mother. Furthermore, there is no evidence prior to August 1, 2013 (excluding the period of hospitalization from May 2013 to July 2013) of impaired abstract thinking or impaired judgment, as VA treatment records in early 2013 show that he denied homicidal ideation and his suicide risk assessment was low. There is also no evidence of flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks, difficulty in understanding complex commands, impairment of short- and long-term memory or other symptoms of similar severity, frequency or duration. As such, a 50 percent rating is not warranted. The Board also finds that the evidence prior to August 1, 2013 does not show occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, to warrant a 70 percent rating. In this regard, as noted above, in July 2013, the Veteran reported having a supportive family, including his wife and two adult children and a close relationship with his mother. Furthermore, although the record reflects that the Veteran last worked in 2001, his unemployment appears to have been related to his inability to continue driving following a fatal truck accident where four people were killed, unrelated to his military service. He was able to work for several years following his discharge without interference from his PTSD. The Board also notes that there is no indication in the VA treatment records or on VA examination between June 19, 2012, and July 31, 2013, of the Veteran having deficiencies in judgment or thinking, due to his PTSD. In this regard, as noted above, VA treatment records in early 2013 show that he denied homicidal ideation and that he was a low risk for suicide. The Veteran did endorse symptoms of moderate to severe depression throughout the appeal period; however, this symptomatology is already accounted for in the 30 percent rating currently assigned for this period. Moreover, the Board finds that the evidence does not show that the Veteran was totally socially and occupationally impaired due to his PTSD prior to the 100 percent rating being assigned on August 1, 2013. As noted above, he did report having a good and supportive relationship with his wife, two adult children and mother, whom he cared for. Furthermore, his retirement in 2001 appears to be due more to his difficulties following the fatal motor vehicle accident he was involved in and two subsequent accidents, rather than symptoms from his PTSD. There is also no indication in the record that the Veteran was fired or refused employment due to his PTSD. It was noted in October 2013 that the Veteran was not a candidate for vocational rehabilitation, but this was after August 1, 2013. See October 2013 VA Memo. As the preponderance of the evidence does not support a finding of total occupational and social impairment, a 100 percent rating is not warranted prior to August 1, 2013 (exclusive of a temporary total rating from May 6, 2013, to July 31, 2013). The Board also notes that a December 2016 psychiatric evaluation was completed by private clinical psychologist, C. P. R., Ph.D. Dr. C. P. R. noted that there is evidence of very significant disability due to PTSD from 2005 onwards. In support of this finding, he cites to medical evidence from 2003, 2005, 2006 and 2009. He does not discuss medical evidence from June 2012 to July 31, 2013, the period under consideration. Therefore, the Board concludes that his findings cannot be used to support the grant of a rating in excess of 30 percent for the Veteran's PTSD prior to August 1, 2013. In summary, the Board finds that the Veteran may have demonstrated some of the symptoms required for a rating in excess of 30 percent for PTSD prior to the assignment of the 100 percent rating on August 1, 2013. However, his major symptoms prior to August 1, 2013 were chronic sleeping problems, anxiety, depression and disturbances of mood, and impaired, not total, occupational and social functioning. Therefore, the Board finds that his symptoms more nearly approximate the criteria for a 30 percent rating prior to August 1, 2013. Accordingly, the Board finds that a rating in excess of 30 percent is not warranted prior to August 1, 2013 (exclusive of a temporary total rating from May 6, 2013, to July 31, 2013) and as such, an effective date earlier than August 1, 2013, for the grant of a 100 percent rating for PTSD (exclusive of a temporary total rating from May 6, 2013, to July 31, 2013) is not warranted. Consideration under 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). ORDER An effective date earlier than August 1, 2013 for the grant of a 100 percent rating for PTSD (exclusive of a temporary total rating from May 6, 2013, to July 31, 2013) is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs