Citation Nr: 1802810 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-08 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for occlusion and stenosis of the carotid artery without cerebral infarction, claimed as blockage in main artery going to brain. 2. Entitlement to an increased rating in excess of 30 percent for coronary artery disease (CAD), status post stent placement and coronary artery bypass graft. 3. Entitlement to an increased rating in excess of 30 percent for post-traumatic stress disorder (PTSD). 4. Entitlement to an effective date earlier than September 18, 2008 for the grant of service connection for coronary artery disease, status post stent placement and coronary artery bypass graft. 5. Entitlement to an effective date earlier than September 18, 2008 for the grant of service connection for PTSD. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Thompson, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1967 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2012 and December 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In April 2017, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. The issue of entitlement to service connection for occlusion and stenosis of the carotid artery without cerebral infarction and the rating for CAD are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The RO granted service connection for coronary artery disease in an August 2011 rating decision assigning an effective date of September 18, 2008. The Veteran did not perfect an appeal of this rating decision; nor has he asserted clear and unmistakable error in this decision. 2. The RO granted service connection for PTSD in a March 2009 rating decision assigning an effective date of September 18, 2008. The Veteran did not appeal this rating decision; nor has he asserted clear and unmistakable error in this decision. 3. The Veteran's PTSD has been manifested by symptoms productive of impairment no greater than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. CONCLUSIONS OF LAW 1. The Veteran's freestanding claim seeking an effective date prior to September 18, 2008, for the grant of service connection for coronary artery disease lacks legal merit. 38 U.S.C. §§ 5109A, 7105 (2012); 38 C.F.R. § 20.101 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The Veteran's freestanding claim seeking an effective date prior to September 18, 2008, for the grant of service connection for PTSD lacks legal merit. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The criteria for a rating higher than 30 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA satisfied the duties to notify and assist in this appeal and neither the Veteran nor his representative has asserted any error as to these duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). The Veteran was provided VA examinations for his PTSD. The Board finds that these examinations and the associated reports were adequate. Along with the other evidence of record, they provided sufficient information to decide the appeal and a sound basis for a decision on the Veteran's claim. The examination reports were based on examination of the Veteran by an examiner with appropriate expertise who thoroughly reviewed the claims file. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above regulation: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the April 2017 Board hearing, the undersigned identified the issue on appeal and focused on the elements necessary to substantiate the claim and evidence that could assist the Veteran in substantiating the claim. The Veteran has not suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the duties set forth in 38 C.F.R. § 3.103(c)(2) were satisfied. Regarding the Veteran's claims for earlier effective dates for the grants of service connection for coronary artery disease and PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that where the law, and not the underlying facts or development of the facts are dispositive in a matter, the duty to notify and assist can have no effect on the appeal. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); see also Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); DelaCruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive). In this case, and as discussed below, those issues must be dismissed as a matter of law. Accordingly, further discussion of the VCAA is not required with respect to those claims. Therefore, VA has satisfied its duties to notify and assist, additional development efforts would serve no useful purpose, and there is no prejudice to the Veteran in adjudicating this appeal. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Effective Dates The Veteran contends that the effective date for the grant of service connection for coronary artery disease should be earlier than September 18, 2008. He has asserted that the effective date should be retroactive to 2005 when he was first diagnosed with ischemic heart disease. He has also asserted that he is entitled to an effective date for the grant of service connection for PTSD earlier than September 18, 2008. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase 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. 38 U.S.C. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). An informal claim must identify the benefits sought; and 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 claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). a. Coronary Artery Disease The RO originally granted service connection for coronary artery disease in an August 2011 rating decision, assigning a 10 percent evaluation with an effective date of September 18, 2008 and a 30 percent evaluation effective April 5, 2011. The Veteran filed a timely notice of disagreement to the effective date and the ratings assigned. After the June 2013 statement of the case, the Veteran filed a VA Form 9 substantive appeal on October 9, 2013. He was notified in an October 23, 2013 letter that his substantive appeal was untimely, that his appeal was closed, and that he had the right to appeal the decision. He did not appeal the decision. As the Veteran failed to perfect an appeal of the August 2011 rating decision, it is not subject to revision in the absence of CUE. 38 U.S.C. §§ 5109A, 7105; see Rudd, 20 Vet. App. 296 (2006). Because the Veteran has not submitted a motion for CUE in the August 2011 rating decision that assigned the effective date for service connection for coronary artery disease, the Board finds that the present assertions for entitlement to an effective earlier than September 18, 2008 for the grant of service connection for coronary artery disease are attempts to establish a freestanding claim for an earlier effective date, which is not permitted under Rudd. Accordingly, this matter is dismissed. b. PTSD The RO originally granted service connection for PTSD in a March 2009 rating decision, assigning an effective date of September 18, 2008. The Veteran did not submit a timely notice of disagreement with the March 2009 rating decision; thus it is not subject to revision in the absence of CUE. 38 U.S.C. §§ 5109A, 7105; see Rudd, 20 Vet. App. 296 (2006). Because the Veteran has not submitted a motion for CUE in the March 2009 rating decision that assigned the effective date for service connection for PTSD, the Board finds that the present assertions for entitlement to an effective earlier than September 18, 2008 the grant of service connection for PTSD are attempts to establish a freestanding claim for an earlier effective date, which is not permitted under Rudd. Accordingly, this matter is dismissed. III. Increased Rating for PTSD Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating 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 evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The RO has rated the Veteran's PTSD under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R § 4.130, Diagnostic Code 9411 (PTSD). The General Rating Formula is as follows: A 30 percent rating is warranted 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 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); inability to establish and maintain effective relationships. Id. 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. 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). Although the Veteran's symptomatology is the primary consideration, the Veteran's level of impairment must be in "most areas" applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). In addition, the evaluation 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. See 38 C.F.R. § 4.126(b). The Global Assessment of Functioning (GAF) scale reflects the psychological, social and occupational functioning under a hypothetical continuum of mental illness. See American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). See also Carpenter v. Brown, 8 Vet. App. 240, 243 (1995); 38 C.F.R. § 4.130. According to the DSM-IV, a GAF score of 61-70 denotes 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, has some meaningful interpersonal relationships. A GAF score of 51-60 indicates 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-workers). A GAF score of 41-50 indicates serious 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). An examiner's classification of the level of psychiatric impairment, by words or a GAF score is a factor for consideration and not determinative of the percentage VA disability rating to be assigned. See also 38 C.F.R. § 4.126(a). Service connection for PTSD was granted in a March 2009 rating decision based on a December 2008 VA examination. VA treatment records from August 2014 show positive PTSD screens. In August 2015, the Veteran filed a claim for service connection for night grinding of teeth secondary to PTSD. He was afforded a VA dental examination in November 2015, which diagnosed the Veteran with bruxism. The examiner opined that it was as likely as not that the night grinding of teeth was due to PTSD, as PTSD has been linked to causing nocturnal bruxism. A deferred rating from December 2015 stated that the Compensation Service Bulletin indicated that bruxism may not be rated as a stand-alone service-connected disability and requested a PTSD VA examination in light of the November 2015 VA examiner's comments linking PTSD to bruxism. The Veteran was afforded a PTSD VA examination in December 2015. The examiner described the Veteran's PTSD as manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. Symptoms determined to actively apply to the Veteran's diagnosis were anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disturbances of motivation and mood. The Veteran reported no social, occupational, mental health, legal, or substance abuse history since his last exam in December 2008. The examiner noted the Veteran was cooperative, casually dressed but mildly disheveled, his affect was congruent and appropriate, and his thought processes were generally goal directed. With respect to the diagnosed bruxism, the examiner stated that he was not familiar with bruxism as a direct symptom of PTSD, but opined that any anxiety-based disorder most likely could cause bruxism and thus deferred to the opinion of the November 2015 VA examiner. On review of the record, the Board finds that the disability picture presented by the Veteran's PTSD does not warrant a rating higher than 30 percent. VA mental health clinic notes consistently show that the Veteran was doing well and enjoyed fishing, gardening, and spending time with his family. The Veteran indicated that he was generally on good terms with his children and his wife. He also reported involvement in local hunting and gaming clubs. On mental status examinations, the physician consistently found the Veteran appropriately oriented, groomed, with congruent, reactive, affect and appropriate speech, eye contact, and thought processes. Reported PTSD symptoms included on and off nightmares that were "less vivid and memorable than before." The Veteran also was unable to watch war movies and remained hypervigilant. The Veteran also noted annual PTSD triggers starting in October and lasting through November 10. In September 2017, the Veteran reported flashbacks, poor sleep, and passive suicidal ideations without a plan or intent in August 2017. The physician noted that the Veteran stated that August "is the worst month" because of the anniversary of a friend's death. Considering the symptoms in the lay and medical evidence, the Board finds that the overall functional occupational and social impairment is contemplated by the 30 percent rating assigned during this period. The Board has carefully considered the level of impairment contemplated by the various levels delineated in the rating schedule and found that the evidence indicates that the overall level of disability most nearly approximates that already assigned. In making this determination, the Board has reviewed all the evidence of record, both medical and lay evidence, regarding the level of severity of the Veteran's PTSD. There is no period during which the preponderance of the evidence showed that a higher rating was warranted, or that a staged rating was warranted. ORDER Entitlement to an effective date earlier than September 18, 2008 for the grant of service connection for coronary artery disease is dismissed. Entitlement to an effective date earlier than September 18, 2008 for the grant of service connection for PTSD is dismissed. Entitlement to a disability rating higher than 30 percent for post-traumatic stress disorder (PTSD) is denied. REMAND Although the Board regrets the additional delay, the Board finds that additional development is needed before the Veteran's remaining claim on appeal can be decided. The Veteran asserts that his carotid artery is clogged due to herbicide agent exposure in service or, alternatively, as a direct result of his service-connected heart disability. As the Veteran served in Vietnam, the Veteran is presumed to have been exposed to herbicide agents. To date, the Veteran has not been afforded a VA examination in conjunction with this claim. Accordingly, an examination to secure a medical opinion as to the medical questions presented is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Regarding the rating for CAD, the RO recently uploaded in January 2018 an examination relevant to the rating for CAD. The AOJ must first review this evidence. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant and outstanding VA treatment records and associate them with the electronic claims file. 2. After completion of directive #1, schedule the Veteran for a VA examination with an appropriate medical professional to ascertain the nature and etiology of his claimed occlusion and stenosis of the carotid artery disability. The claims file must be made available to the examiner for review. All indicated tests and studies must be performed, and a comprehensive history should be obtained. The examiner should provide an opinion as to: a. whether it is at least as likely (at least 50 percent probability) that the Veteran's occlusion and stenosis of the carotid artery began during the Veteran's active service, or is otherwise related to service, including his presumed exposure to Agent Orange during service. b. whether it is at least as likely as not that the Veteran's occlusion and stenosis of the carotid artery is proximately due to or the result of his service-connected coronary artery disease. c. whether it is at least as likely as not that the Veteran's occlusion and stenosis of the carotid artery has been aggravated or made permanently worse beyond the natural progression of the disease by his service-connected coronary artery disease A complete rationale is requested for any opinion expressed. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. 3. After completing all actions set forth above and any further action needed as a consequence of the above development, readjudicate the claims on appeal, to include reviewing the issue of an increased rating for CAD based on all evidence of record to include the recent VA examination. If the benefit on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case and allow the appropriate time for response. Then return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). ______________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs