Citation Nr: 1801621 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-05 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an effective date prior to October 4, 2010 for the award of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD D. Ware, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1967 to July 1969, including service in Vietnam. His awards and decorations include the Combat Infantryman Badge, National Defense Service Medal, Vietnam Campaign Medal, and Vietnam Service Medal. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. The Veteran filed a formal claim for entitlement to service connection for PTSD on October 4, 2010. The record does not contain evidence of the Veteran having filed a claim, formal or informal, prior to October 4, 2010. 2. The Veteran's PTSD with depressive disorder has been productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 4, 2010 for the award of service connection for PTSD have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.400 (2017). 2. The criteria for entitlement to an initial rating of 70 percent for PTSD with depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date Generally, the effective date of an evaluation and award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C.A. § 5110(a); 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. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. Because VA received the Veteran's claims prior to March 24, 2015, the former regulations apply as cited below. When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file that could be interpreted to be a claim for benefits. A claim is defined as a formal or informal written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Any communication or action from a claimant indicating intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). The Veteran contends that he is entitled to an effective date prior to October 4, 2010, for the grant of service connection for PTSD. See November 2012 Notice of Disagreement. The Board has thoroughly reviewed the evidence of record prior to October 4, 2010, to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection, during that time. The record shows that the Veteran filed a formal claim for entitlement to service connection for PTSD on October 4, 2010. See VA Form 21-526, Veterans Application for Compensation or Pension. The record does not contain evidence of the Veteran having filed any claim prior to October 4, 2010. Although the Board is sympathetic to the Veteran's contention that the Veteran should be awarded service connection prior to October 4, 2010, the Board is bound by the applicable statutes and regulations. 38 U.S.C.A. § 7104(c)(West 2014); 38 C.F.R. § 20.101(a)(2017). As noted above, an effective date is assigned based on the date of claim or the date entitlement arose, whichever is later. Thus, the proper effective date is October 4, 2010, the date of claim. Accordingly, an earlier effective date is not warranted for the award of service connection for PTSD. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2017). Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct times where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's PTSD was assigned a rating of 30 percent, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent rating is warranted for occupational and social impairment with an 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 a depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events). Id. A 50 percent rating is warranted where 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. Id. A 70 percent rating is warranted where 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where 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 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. Id. The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." "Although the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of [occupational and social] impairment." Id. In reviewing the evidence of record, the Board will consider the assigned GAF scores; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). In early 2012, the Veteran described experiencing problems since his returned from Vietnam. He reported that he had serious problems sleeping and that it was constantly interrupted by nightmares and sudden startled awakenings. He admitted to instantaneous outbursts of anger. He had been married to his wife for 42 years. They have one daughter and two grandsons. He also has a daughter from a previous relationship but has not remained in touch. He stated that he was antisocial and had no friends or acquaintances outside family. He was currently employed but could not leave his house for very long or travel out of town, and he had difficulty working with others. He related that he became very depressed after his mother's and wife's negative response to his safety plan that he shared one particular day. He reported that on that same day "[his] shotgun looked like [his] friend;" however, he did not do anything with his gun. He admitted that at times he wished that he did not wake up. Although he described frequently having passive suicidal thoughts and plans, he was not currently having any suicidal thoughts. On examination, he had appropriate dress, good hygiene, and maintained good eye contact. He was cooperative and oriented in all spheres. His mood was anxious and his affect was appropriate to context yet guarded. His short and long-term memory were intact. His speech, concentration, attention, and motor activity were normal. His thought content was unremarkable. He denied any homicidal ideation or plan. There was no evidence of any formal thought disorder, psychotic symptoms, obsessions, compulsions, or phobias. He had fair judgment and insight. He denied any hallucinations or delusions. He was diagnosed with PTSD; panic with agoraphobia; and depressive disorder. He was assigned a GAF score of 60. See January 2012 VA Mental Health Note; March 2012 VA Initial Psychiatric Comprehensive Examination. The Veteran was afforded a VA psychiatric examination in May 2012. He reported that, when he returned from Vietnam, he was a "mess" and remained in a drug-induced stupor for several months until his parents kicked him out. He noted that he had a good relationship with his daughter and grandsons. However, since their daughter left home, his relationship with his wife had steadily decreased to the point that they now lived separate lives in their own home. He reported that he rarely went out and had multiple issues when he did. With respect to his job, he worked part-time traveling to various stores. He noted that eight years ago he became angry with a customer and hit a wall with his fist and that he often received write-ups for various issues at work. On examination, the Veteran appeared neat and anxious with fair eye contact. He was cooperative and oriented in three spheres. His mood and affect were anxious. His speech, concentration, memory, and attention were intact. He had fair judgment and insight. His thought process was logical and sequential. He denied any delusions. With respect to hallucinations, he reported seeing things out of the corner of his eye but when he looked there was nothing there. He was not obsessive or compulsive. He reported having a high degree of continuous anxiety, with episodes of anxiety attacks several times a week. He stated that he had nightmares three to five times a week that would wake him up. Once awakened, he tended to have racing thoughts about those experiences. He had some past episodes of anger and he recently had road rage and followed people with his car. He has had brief homicidal ideations in his car but has not acted on them. He reported sporadic suicidal thoughts over the years. He noted that he has touched his gun but he never actually picked it up with the intent to kill himself. The most recent time was finding out that he did not get compensation for his illness. He denied any current suicidal ideation, intent, or plan. The examiner determined that he had occupational and social impairment due to mild or transient symptoms, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. He was diagnosed with PTSD; panic with agoraphobia; and depressive disorder. He was assigned a GAF score of 65. From June to November 2012, the Veteran presented in casual dress with good grooming and eye contact. He was oriented in three spheres. His mood was dysphoric and anxious. His affect was diminished and somewhat sad. His speech was fluent and goal directed. He complained of poor memory and feeling depressed and hopeless at times. His judgment and insight were fair and intact. His sleep was fair with some nightmares at times. There was no evidence of any formal thought disorder, delusions, hallucinations, psychotic symptoms, obsession, compulsions, or phobias. He and his wife continued to have difficulty in their relationship and they slept in separate bedrooms. He also had anxiety attacks daily or more. He experienced problems with angry outbursts and frustration. He avoided crowds, people, and places, which reminded him of his military times. He did not like leaving the house and became anxious and distressed after a few hours before feeling the need to return home. He noted that he was able to '"turn most of it off"' for his sales work. However, he worked alone out of his house and did not work well with others (i.e. he did not have to go into the office and had not seen his boss for two years). There was no hint or evidence of suicide or homicidal thoughts, intent or plans. He continued to experience a moderate level of impairment in his psychosocial functioning. He was diagnosed with PTSD and cyclothymic disorder. His GAF scores ranged from 50 to 52, 55 to 58, and 60. See June to November 2012 VA Mental Health Notes and Addenda; July 2012 VA Psychiatry E & M Note; November 2012 VA Psychiatry E & M Note. In 2013, the Veteran presented in casual dress with good grooming and eye contact. He was pleasant and cooperative. He was oriented in three spheres. His mood was dysphoric and anxious but sometimes euthymic or panicky. His affect was diminished. His speech was normal. His judgment and insight were intact. There was no evidence of any formal thought disorder, delusions, hallucinations, psychotic symptoms, obsession, compulsions, or phobias. He reluctantly admitted that he had passing passive suicidal ideation, but denied any intent or plan. His thoughts included wishing that he did not wake up or that something would happen to him. Additionally, he self-reported symptoms of repeated disturbing dreams and memories, thoughts or images of stressful past events; reliving stressful past events; feeling very upset and having physical reactions when something reminded him of stressful past events; avoiding thinking or talking about or having feelings related to stressful past events; avoiding activities or situations that reminded him of stressful past events; trouble remembering important parts of stressful past events; loss of interest in activities that he used to enjoy; feeling distant or cut off from other people; feeling emotionally numb; feeling as if his future somehow would be cut short; moderate trouble falling or staying asleep; feeling irritable or having angry outbursts; difficulty concentrating; watchfulness and on guard; and feeling jumpy or easily startled. He was diagnosed with PTSD and depression. His GAF scores varied from 48 to 50, 55, and 60. See January to November 2013 VA Mental Health Notes; August 2013 VA Psychiatry Note; October 2013 VA Psychiatry Note Addendum; November 2013 VA E & M Note. For 2014 and 2015, the Veteran presented in casual dress with good grooming and eye contact. He was pleasant and cooperative. He was oriented in three spheres. His mood was dysphoric and anxious but sometimes euthymic. His affect was diminished. His speech was normal. His judgment and insight were intact. There was no evidence of any formal thought disorder, delusions, hallucinations, psychotic symptoms, obsession, compulsions, or phobias. He denied any suicidal or homicidal ideation. He was diagnosed with PTSD and adjustment disorder with anxiety in remission. His GAF scores ranged from 50 to 54 and 58 to 60. See 2014 and 2015 VA Mental Health and Psychiatry Notes. The aforementioned evidence reflects that the Veteran's PTSD was manifested by difficulty sleeping, nightmares, intrusive thoughts, panic attacks, anxiety, depression, isolative behavior, memory impairment, difficulty in establishing and maintaining effective relationships, and suicidal ideation. The Board acknowledges that while the evidence has varied, the mental status examinations of record as well as the May 2012 VA psychiatric examination have shown the frequency, severity, and duration of symptoms consistent with a higher 70 percent rating, which contemplates occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood. However, at no point during the period of the appeal, has the Veteran's service-connected PTSD been shown to have met the criteria for the higher rating of 100 percent. VA treatment records noted that the Veteran was oriented to person, place, and time. He exhibited no formal thought disorder, delusions, psychotic symptoms, obsession, compulsions, or phobias. Although there was one report that he was "seeing things," there is no evidence that he had persistent hallucinations. Similarly, while the Veteran expressed suicidal ideation and road rage, he was not in persistent danger of hurting self or others. Throughout his VA psychiatric treatment, the Veteran's general appearance was observed to be appropriate. Although the Veteran was socially isolated to some extent, he did work and maintained a few social and personal interactions. Moreover, the November 2013 VA PTSD examination and VA treatment records did not reflect an assessment of total social and occupational impairment. Taken together with the other evidence noted above indicating at most severe PTSD but not total impairment, with few, if any, of the symptoms described under the 100 percent rating, the Board finds that a 100 percent rating is not warranted. Furthermore, the GAF scores assigned during this period do not tend to support the assignment of a higher rating. As indicated, the Veteran had been assigned GAF scores ranging from 48 to 65 during the course of the appeal period. According to DSM-IV, GAF scores ranging from 41 to 50 reflect severe symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job), GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-worker), and GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Here, the majority of the GAF scores assigned during the appeal period are reflective of moderate to severe symptomatology and this is consistent with the 70 percent rating assigned. Accordingly, the Board finds that a rating of 70 percent for PTSD, but no higher, is warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). The Board has considered the Veteran's claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to these claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). ORDER An effective date prior to October 4, 2010 for the award of service connection for PTSD is denied. Entitlement to an initial rating of 70 percent for PTSD is granted. ____________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs