Citation Nr: 1801494 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 11-18 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date earlier than March 6, 2008 for the grant of service connection for posttraumatic stress disorder (PTSD) with depression, alcohol dependence and abuse, and erectile dysfunction, to include on the basis of clear and unmistakable error (CUE) in a July 2003 rating decision and March 2007 statement of the case (SOC) that previously denied service connection for PTSD. 2. Entitlement to a disability rating greater than 50 percent for PTSD with depression, alcohol dependence and abuse, and erectile dysfunction. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active military service from September 1997 to February 1998, November 2001 to November 2002, and January 2003 to February 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which granted service connection for PTSD with depression, alcohol dependence and abuse, and erectile dysfunction, assigning a 50 percent disability rating effective March 6, 2008. The Veteran disagreed with the effective date assigned for this disability and perfected an appeal with respect to the effective date assigned in the January 2009 rating decision. This case also comes before the Board on appeal of a May 2016 rating decision of the VA RO in Montgomery, Alabama which continued a 50 percent disability rating for the Veteran's PTSD. The Veteran disagreed with the disability rating assigned for his PTSD in the May 2016 rating decision. The Veteran testified before the undersigned Veterans Law Judge at Travel Board hearing in October 2017. A transcript of this proceeding has been associated with the claims file. Significantly, while the Veteran has not perfected an appeal with regard to the increased rating issue, during the October 2017 Board hearing, the undersigned Veterans Law Judge indicated that the increased rating issue was on appeal and primarily took testimony on this issue. In fact, the Veteran's representative questioned whether the effective date issue was even on appeal. As such, the increased rating issue is before the Board pursuant to Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (VA waives objection to timeliness of substantive appeal by taking actions that lead the Veteran to believe that an appeal was perfected). The issue of entitlement to an effective date earlier than March 6, 2008 for the grant of service connection for PTSD with depression, alcohol dependence and abuse, and erectile dysfunction, to include on the basis of CUE in a July 2003 rating decision and March 2007 SOC that previously denied service connection for PTSD, is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDING OF FACT The Veteran's PTSD with depression, alcohol dependence and abuse, and erectile dysfunction is currently manifested by no more than occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood; anxiety; suspiciousness; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for a disability rating greater than 50 percent for PTSD with depression, alcohol dependence and abuse, and erectile dysfunction have not been met. 38 U.S.C. § 1155, 5107 (2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance With respect to the claims being decided, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Relevant to the duty to assist, the Veteran's VA treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide the pending appeal. Therefore, the Board finds that VA's duty to assist with respect to obtaining records has been fulfilled. Additionally, the Veteran was provided a VA examination in April 2016 to determine the nature and severity of PTSD. Neither the Veteran nor representative has alleged that the VA examination is inadequate for rating purposes. The Board finds that the examination is adequate in order to rate the Veteran's service-connected PTSD as it includes an interview with the Veteran, a review of the record, and full examination, addressing the relevant rating criteria. Moreover, neither the Veteran nor representative has alleged that the disability has worsened in severity since the April 2016 VA examination. Rather, they argue that the evidence shows that the Veteran's disability has been more severe than the currently assigned rating for the duration of the appeal period. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (passage of time alone, without an allegation of worsening, does not warrant a new examination). II. Legal Criteria Disability rating are determined by the application of the facts presented to VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In rating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A claim for increased rating remains in controversy when less than the maximum available benefit is awarded AB v. Brown, 6 Vet. App. 35 (1993). Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In a decision, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's PTSD with depression, alcohol dependence and abuse, and erectile dysfunction is rated under DC 9411. Pursuant to DC 9411, a 50 percent rating is assigned when 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 work-like setting); and the inability to establish and maintain effective relationships. A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. § 4.71a, DC 9411, General Rating Formula for Mental Disorders. Symptoms listed in VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. In addition, the rating must 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. Further, when rating the level of disability from a mental disorder, the extent of social impairment is considered, but a rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126. III. Factual Background Evidence relevant to the current level of severity of PTSD includes a VA examination report dated in April 2016. At that time, the examiner diagnosed PTSD with depressive features and found that the Veteran's PTSD resulted in occupational and social impairment with reduced reliability and productivity. The examiner reviewed the claims file and noted that the Veteran lived alone and was in the process of divorcing his wife. The Veteran reported that he had been married for 12 years (together for 17 years) and found out around April 2015 that his wife had been cheating on him for most of the time they had been together. This had been a significant source of stress for the Veteran. He noted that his wife had filed a protective order against him but that he was not violent towards her. He was unable to see his children for a period of time due to the court order and that his wife had contacted his employer with false accusations that the Veteran was harassing her. He felt like his wife was trying to push him to do something so he looked like the bad guy in the divorce instead of her (being the person who was unfaithful). The Veteran had three children, ages 9 through 15, and enjoyed spending time with them. He felt like his wife was trying to turn his children against him. He indicated that his daughters had begun to pull away from him but that he still had a good relationship with his son. Outside of his wife and children, he maintained a relationship with his mother and step-brother. He tried dating but the women he dated did not understand what he was going through. He also played cards with friends about twice per month. He enjoyed exercising, cleaning, and playing video games/football. The Veteran reported that he had been working as a firefighter since July 2005 where he worked 24 hours on and 48 hours off. He worked other part-time jobs on his days off, mostly security jobs. He had recently taken some time off from work as he was not focusing well and did not want to hurt anyone at work due to his lack of focus. He took a leave of absence from July to September 2015 to try to clear his head about his marital problems and traveled to Costa Rica and Puerto Rico during this time. He returned to work in September 2015 but injured his knee in December 2015 and had been off of work since that time due to his knee problem. He indicated that he had a problem with anger/irritability and had a couple of instances where he "grabbed" someone. He also had memory problems and declined driving the fire truck while working due to trouble remembering addresses. The Veteran sees a VA psychologist approximately every three weeks and takes psychiatric medications. He denied any psychiatric hospitalizations, suicidal attempts, or a significant legal/behavioral history. The Veteran reported a history of drinking too much but denied illegal drug abuse. The examiner found that the Veteran's PTSD resulted in the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; and difficulty in establishing and maintaining effective work and social relationships. On mental status examination the examiner noted that the Veteran was casually dressed with good grooming and hygiene. The Veteran was cooperative, pleasant, alert, and oriented. His speech was clear and coherent and his mood was described as "unstable." His affect was constricted. With regard to sleep, the Veteran reported a problem maintaining sleep. He will periodically get up and check all the door locks and will often lie down and listen for noises outside. He only got about five hours of sleep per night. He had bad dreams about losing his temper and also experienced nightmares. His energy was moderate and his appetite was variable. The Veteran denied suicidal/homicidal ideation. His thought process was logical and organized and his thought content was relevant and non-psychotic. His attention/concentration was intact. There was no impairment of memory and judgment/insight were average. The Veteran indicated that he did not feel depressed but acknowledged that his divorce and being away from his children had an impact on him. He was isolating more and spending more time at his house. He had periods of anxiety and sometimes feels like he is still on active duty. He did not have frequent nightmares about his deployment but did experience such nightmares about two times per month. He also reported intrusive thoughts. The Veteran's anger/irritability continued to be a significant problems and he was working very hard to control this. During the October 2017 Board hearing, the Veteran's representative argued that the Veteran met the criteria for a 70 percent rating for PTSD. Specifically, it was noted that the Veteran experienced obsessive rituals where he would check the perimeter of the house constantly. He also had trouble sleeping and experienced intermittently illogical, obscure, or irrelevant speech at times. He had trouble with his memory and experienced near continuous panic or depression. He also experienced irritability with large groups of people and/or disorganization. Socially, the Veteran was going through a divorce and had trouble being around people. Also of record are VA treatment reports dated through September 2017. These records show that the Veteran regularly receives psychotherapy through VA. Significantly, a September 2017 VA treatment record shows that the Veteran continues to maintain a contentious relationship with his ex-wife who refuses to leave the home that he owns. She has alienated their three children against him. He started a new job assignment as a firefighter at the airport which he felt would be a better placement for him and continued to work part-time in security. The Veteran was no longer dating his girlfriend. On mental status examination he was oriented to time, place, person, and purpose. He was experiencing psychological distress but there were no indications of mental content symptoms, perceptual disturbance, or gross cognitive confusion. Thinking and speech were within normal limits. There were no indications of suicidal or violent ideation, plan, or recent behaviors. The Veteran did have access to firearms but not to stockpiled medications. He appeared to be at low imminent risk for self-harm. The September 2017 VA treatment record shows findings similar to other VA treatment records during the course of this appeal beginning January 2016. IV. Analysis Based on these findings, the Board finds that the evidence of record does not substantiate an evaluation greater than 50 percent. The evidence does not demonstrate that the Veteran's service-connected PTSD is productive of occupational and social impairment with deficiencies in most areas or an inability to establish and maintain effective relationships. The evidence of record shows that the Veteran continues to work full-time as a firefighter and part-time in security. While he is going through a divorce and is currently experiencing a strained relationship with his wife and children, he maintains good relationships with his mother, step-brother, and several friends. Overall, the totality of the evidence reflects symptoms warranting no more than a 50 percent rating under the applicable criteria. There is no evidence of 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; or neglect of personal appearance and hygiene. While the Veteran contended during the October 2017 Board hearing that he experienced many of the symptoms necessary for a 70 percent rating, the April 2016 VA examination report considers such symptoms and found that the Veteran's symptomatology does not rise to the level of the symptoms associated with a 70 percent disability rating. In sum, the Board concludes that the Veteran's PTSD is not manifested by symptomatology that nearly approximates the criteria for the next higher evaluation under DC 9411. The Board also finds that no higher evaluation can be assigned pursuant to any other potentially applicable diagnostic code. Because there are specific diagnostic codes to evaluate PTSD consideration of other diagnostic codes for evaluating the disability does not appear appropriate. See 38 C.F.R. § 4.20 (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability). See Butts v. Brown, 5 Vet. App. 532 (1993). ORDER A disability rating greater than 50 percent for PTSD with depression, alcohol dependence and abuse, and erectile dysfunction is denied. REMAND Regarding the Veteran's claim for an earlier effective date for the award of service connection for PTSD, the January 2009 rating decision on appeal assigned an effective date of March 6, 2008, based on the fact that such was the date that VA first received the Veteran's application to reopen his claim following final disallowances in a July 2003 rating decision and a March 2007 SOC. In this regard, the Veteran argues that the effective date for service connection for PTSD should have been assigned as of the date of receipt when he initially filed his claim for such disability, i.e., October 23, 2002, as the July 2003 and March 2007 denials were clearly and unmistakably erroneous. The record reflects that, in the July 2003 rating decision, the RO denied service connection for PTSD based on the fact that there was no competent diagnosis of PTSD. In reaching such decision, the RO considered the Veteran's service treatment records (STRs), which failed to show a diagnosis of PTSD; post-service records from the Vet Center showing a diagnosis of PTSD; and a January 2003 VA psychiatric examination which showed a diagnosis of anxiety disorder, not otherwise specified, but was negative for a diagnosis of PTSD. The RO specifically determined that the Veteran's service and post-service treatment records were negative for a competent diagnosis of PTSD. The Veteran submitted a timely notice of disagreement as to the July 2003 rating decision and an SOC was issued in March 2007. Significantly, the March 2007 SOC noted review of a January 2004 Physical Evaluation Board which showed a diagnosis of PTSD. However, the Physical Evaluation Board also found that the Veteran's PTSD existed prior to service, was not incurred in the line of duty, and was not aggravated by the Veteran's military service. The March 2007 SOC continued the denial of service connection for PTSD, finding that there was no confirmed PTSD stressor and that the Veteran's PTSD was incurred prior to service and not aggravated during his military service. In March 2008, the Veteran submitted a VA Form 9 in response to the March 2007 SOC. However, this was received more than 60 days after the March 2007 SOC and more than one year after notification of the denial of service connection for PTSD and was not a timely substantive appeal which would have perfected an appeal of the July 2003 rating decision denying that claim. Furthermore, no additional evidence pertaining to such claim was received prior to the expiration of the appeal period stemming from the July 2003 rating decision. 38 C.F.R. § 3.156(b). Accordingly, the Veteran did not perfect a timely appeal from the July 2003 rating decision and that decision is final. The RO construed the March 2008 VA Form 9 as the Veteran's application to reopen his claim for service connection for PTSD. In connection with this claim, the Veteran was afforded a VA psychiatric examination in January 2009 and diagnosed with PTSD. Thereafter, the January 2009 rating decision granted service connection for PTSD with depression, alcohol dependence and abuse, and erectile dysfunction, assigning a 50 percent disability rating effective March 6, 2008. In February 2009 and September 2009 correspondence, the Veteran disagreed with the effective date assigned for his award of service connection for PTSD, arguing that the effective date should be derived from his original request for service connection, allegedly dated November 1, 2002. Specifically, in the February 2009 statement, the Veteran wrote that he was first diagnosed with PTSD in 2003 (while on active duty) and that, since returning to active duty, his PTSD had worsened. In the September 2009 statement, the Veteran wrote that there was evidence of a diagnosis of PTSD at the time of the prior denial. In a June 2011 SOC, the RO noted the prior July 2003 rating decision which denied service connection for PTSD. In a June 2011 VA Form 9, the Veteran wrote that the effective date for his award of service connection for PTSD should be earlier than 2008 because there was evidence of a diagnosis of PTSD at that time. Initially, the Board notes that the RO has not yet addressed the Veteran's specific allegations pertaining to CUE. Moreover, the July 2011 SOC did not advise the Veteran of the laws and regulations specific to CUE claims. Therefore, on remand, the AOJ should address the Veteran's specific contentions pertaining to CUE and provide him with notice of the laws and regulations governing CUE claims. Accordingly, the case is REMANDED for the following action: The AOJ should specifically consider whether the prior July 2003 rating decision and/or March 2007 SOC contain CUE as alleged by the Veteran in February 2009, September 2009, and June 2011 correspondence. Specifically, the Veteran claims that the RO failed to properly consider the information contained in his service and post-service treatment records which supported his diagnosis of PTSD and that it was this diagnosis that was used to grant service connection for PTSD in January 2009. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case, which includes notice of the laws and regulations governing CUE claims. An appropriate period of time should be allowed for response. 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. §§ 5109B, 7112 (West 2014). ______________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs