Citation Nr: 1750115 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 11-02 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for residuals of a fractured coccyx. 2. Entitlement to an effective date earlier than May 20, 2009 for service connection for posttraumatic stress disorder (PTSD). 3. Entitlement to an initial evaluation in excess of 50 percent for PTSD. 4. Entitlement to a total disability rating for compensation purposes based upon individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to an effective date earlier than May 20, 2009 for service connection for PTSD is denied. Entitlement to an initial evaluation in excess of 50 percent for PTSD is denied. WITNESS AT HEARING ON APPEAL The Veteran FINDINGS OF FACT 1. The most probative evidence of record demonstrates that the Veteran's claim of entitlement to service connection for PTSD was received on May 20, 2009. 2. The most probative evidence of record demonstrates that the Veteran's PTSD is productive of functional impairment comparable to occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 20, 2009 for the grant of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). 2. The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1966 to August 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in September 2015. A transcript of that hearing is of record. With the exception of entitlement to an earlier effective date, these matters were previously remanded by the Board in February 2016. The issue of entitlement to service connection for a low back disability was granted in full by a July 2016 rating decision, and is no longer before the Board. The issue of entitlement to an effective date earlier than May 20, 2009 for service connection for PTSD was part of the April 2010 NOD, and was discussed, albeit not separately listed in the issues, in the December 2010 Statement of the Case (SOC). Therefore, it is included in the February 2011 VA Form 9 appeal of all the issues in the SOC. The issue of entitlement to service connection for residuals of a coccyx fracture and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Entitlement to an Earlier Effective Date for PTSD The Veteran contends that his PTSD should be service-connected effective 1998 because this is when he first exhibited signs of PTSD. Except as otherwise provided, the effective date of an evaluation and award of 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 later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. The applicable statutory and regulatory provisions require that VA look to all communications from the veteran which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C.A. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). 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. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). 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. See 38 C.F.R. § 3.1(p). 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. Such 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. See 38 C.F.R. § 3.155. The question before the Board is thus whether a communication or action by the Veteran can be reasonably construed as a claim for service connection for PTSD prior to May 20, 2009. The claim leading to the award of service connection for PTSD was received by the RO on May 20, 2009. There is nothing that can be construed as a claim, formal or informal, prior to that date. Although the Veteran sought treatment for PTSD prior to May 20, 2009, these treatment records do not contain an assertion of the Veteran's intention to file a claim for service connection for PTSD. While evidence contained in treatment records may constitute an informal claim in certain circumstances under 38 C.F.R. § 3.157 (b), such provision explicitly applies only to cases where service connection has already been established or has been denied on the basis that the condition is noncompensable. See MacPhee v. Nicholson, 459 F.3d 1323, 1325- 26 (Fed. Cir. 2006); Sears v. Principi, 16 Vet. App. at 244. Such circumstances are not shown here. Therefore, although entitlement may have arisen prior to May 20, 2009, the effective date is the later of the date entitlement arose or the date of claim. Therefore, an effective date prior to May 20, 2009, is not established, and the issue must be denied. Entitlement to an Initial Rating in Excess of 50 Percent The Veteran argues that his PTSD should be rated at 100 percent because he is not able to work. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the present level of a disability for an increased evaluation claim, staged ratings must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When evaluating a mental disorder, the rating is to be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment must be considered, but a rating may not be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126. Age may not be considered as a factor in evaluating a service-connected disability. 38 C.F.R. § 4.19. A 50 percent evaluation is warranted if the evidence establishes there is 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; and difficulty in establishing and maintaining effective work or social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted if the evidence establishes there is 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); or inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if the evidence establishes there is 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The question for the Board is whether the Veteran's PTSD meets the criteria for a rating higher than 50 percent. The Board finds that the most probative evidence of record does not establish that the Veteran's PTSD is productive of functional impairment comparable to deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or total occupational and social impairment. With regard to social impairment, the Veteran reports four past divorces, which in the February 2010 examination he attributed to an inability to get along with his ex-wives, who wanted to tell him what to do. He also reported that he slept on the couch at times because of his nightmares, and that he refused to go to big dinners with crowds or banquets. He reported getting along with three of his sons but did not have a relationship with his first son. He reported lots of friends and getting along well with others. In the March 2011 examination, the Veteran reported living with his brother and sister-in-law for the past eight years, with whom he got along "just fine." He reported seeing his grandchildren who live nearby two or three times per week, and grandchildren who live far away about twice per year, and stated that he had good relationships with his family. He also reported regularly visiting his sister. In May 2015, he reported that he lived alone, but that he had a non-live-in girlfriend and that his son and brother "come and go." The Veteran's September 2015 hearing testimony was that he cannot get a girlfriend because he screams at night due to nightmares. In the June 2016 examination, the Veteran reported that he was living alone but that his son was staying with him temporarily. The Veteran felt that he had sufficient support and was not isolated or lonely. The Board finds that although the Veteran does have a history of frequent divorce, he also reports good relationships with most of his adult children, his brother and sister-in-law, his grandchildren, and friends such that he did not feel lonely or isolated. Therefore, although he may have had more significant family impairment in the past leading to his divorces, during the period on appeal the Veteran has successfully maintained family relationships and friendships such that the Board cannot find that he is so impaired as to meet the social impairment criteria for a 70 percent rating. Although the February 2010 examination noted some deficiency in judgment in that the Veteran reported that he cannot think about things properly due to his mind being somewhere else, like in Vietnam, this examiner also described the Veteran's symptoms as mild to moderate. The Veteran's judgment has been consistently reported as good or fair elsewhere in the record. Although the January 2011 letter indicated that the Veteran was more irritable, there is no record of unprovoked irritability with periods of violence, or examples of comparable impaired impulse control. Therefore, the Board finds that the Veteran's judgment is not deficient to the level contemplated by a 70 percent rating. The February 2010 examination noted deficiency in thinking in that he reported that the Veteran reported that he cannot think about things properly due to his mind being somewhere else, like in Vietnam. Nonetheless, the Veteran's thought process has been noted in numerous treatment records as unremarkable or logical and goal-directed. He reported difficulty concentrating and confusion such that he sometimes did not properly sort his laundry in his March 2011 examination. However, in October 2011 a VA treatment note found that the Veteran's lapses in concentration were normal aging. The June 2016 examiner found that the Veteran did not evince any disturbances in thought, speech, memory, concentration, or behavior. The record does not contain any report of suicidal ideation. The record as a whole simply does not support a finding that the Veteran suffers from a deficiency in thinking more severe than is typical of his age, or that impairs his ability to function to the level contemplated by the criteria for a 70 percent rating. The February 2010 examination found no deficiency in the Veteran's mood. The June 2016 examiner noted anxiety and disturbances of motivation and mood among the Veteran's symptoms. Disturbances of motivation and mood are specifically contemplated by the 50 percent rating the Veteran has already been assigned. The Veteran's treatment records generally describe the Veteran's mood as euthymic, although he was noted as depressed in May 2015. The February 2010 examination noted that the Veteran reported anxiety such that he felt that he had to stay in his room for 2-3 days at a time, but the record as a whole, including treatment records, does not contain any mention of such episodes. On the contrary, he generally speaks of having good relationships with others and active hobbies or social life such as playing in an amateur pool league with his brothers and son, as reported in the February 2010 examination, and regularly going out to lunch with his sister as noted in the March 2011 examination. The Board finds that the treatment record taken as a whole does not demonstrate a deficiency of mood as contemplated by the criteria for a 70 percent rating. With regard to occupational impairment, the Veteran contends that he is unable to work because of his PTSD. A February 2010 examiner found deficiency in work in that the Veteran reported that his sleep problems have impaired his ability to function to do his job, and that he had increased absenteeism due to not functioning properly due to sleep problems and anxiety and not feeling like being around other people, including staying in his room for 2-3 days at a time. However, the examiner also described the Veteran's current psychosocial functional status as mild to moderate vocational, marital and family, social and interpersonal, and recreational impairment. A January 2011 letter from the Veteran's treatment provider found that the Veteran was permanently unemployable, and that he was isolating himself more and more irritable around people. In a March 2011 examination, the Veteran reported that he quit working two or three years previously because he could not perform or think straight, and he had problems with sleep which he believes rendered him unable to work. Although the Veteran reported sleep interruption so severe that he was unable to work, the examiner found that he appears to be getting adequate total sleep per night (7-10 hours), and that he did not nap during daytime hours. The examiner also noted that the Veteran was unable to provide specific information about how he could not perform or think straight at work, or how his sleep problems caused difficulty with his work performance. The Veteran testified in his September 2015 hearing that he had about three hours of sleep in the last 2-3 days, and could not go to work. A June 2016 examiner found that the Veteran reported a sporadic job history, but that his symptoms were moderate to minimal, with functional abilities in other areas that have remained stable. There are contradicting reports regarding the Veteran's level of occupational impairment. However, even if the Board finds some level of deficiency in the area of work, such work deficiency alone is not sufficient to meet the criteria for a 70 percent rating when there is no comparable deficiency in family relations, judgment, mood, and thinking. The Veteran reported in a May 2012 treatment note that he is able to tolerate his nightmares and difficulties with crowds. In July 2013, the Veteran indicated that he was stable, and knew his limitations. He reported avoiding crowds and elevators, and said that he slept and ate well, and that he saw his sons often and lived with his brother. The Board recognizes that the decreased sleep due to nightmares, which the Veteran has also described as panic attacks, as well as his need to avoid crowds and small spaces such as elevators, reduces his reliability and productivity. This reduced reliability results in the Veteran's self-report of absenteeism, and is contemplated by the 50 percent rating he has been assigned. However, the record simply does not reflect that the Veteran is deficient in most areas such that he would meet the criteria for a 70 percent rating. Therefore, entitlement to a rating in excess of 50 percent for PTSD must be denied. Neither the Veteran nor his representative has raised any other issue, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REMAND As to entitlement to service connection for residuals of a coccyx fracture, the Veteran testified at his hearing that he had copies of the x-rays taken in service showing a coccyx fracture. These x-rays are not of record, and are highly relevant to the service connection claim. Upon remand, a request should be made for the Veteran to provide these x-rays. The Veteran's claim of entitlement to a TDIU is dependent upon the combined effects of the Veteran's service-connected disabilities upon his ability to function in an occupational setting. Therefore, the TDIU claim is intertwined with the issue of entitlement to service connection for residuals of a coccyx fracture. All issues inextricably intertwined with an issue certified for appeal are to be identified and developed prior to appellate review. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, the TDIU claim must also be remanded. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran provide the x-rays showing that he fractured his coccyx or tailbone in service, as referenced in his September 2015 hearing testimony. 2. If the x-rays requested in instruction 1 are obtained, forward the claims file to an appropriate clinician and request an opinion as to whether it is at least as likely as not (50 percent or greater probability) that such films demonstrate that the Veteran fractured his coccyx or tailbone in service, and whether it is at least as likely as not that the Veteran has current residuals of fracture of coccyx or tailbone in service. Rationale must be provided for the opinions offered. 3. After completing all of the above development, readjudicate the issues on appeal. If any 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 matters 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 2014). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Budd, Associate Counsel Copy mailed to: The American Legion Department of Veterans Affairs