Citation Nr: 1802944 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 09-42 200A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) prior to March 23, 2006. WITNESS AT HEARING ON APPEAL The Veteran FINDING OF FACT The most probative evidence of record demonstrates that effective August 26, 2002, the Veteran's PTSD symptoms were productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent evaluation, and no higher, effective August 26, 2002, and no earlier, have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 4.130 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which assigned a 100 percent evaluation for PTSD, effective March 23, 2006. Service connection for PTSD was granted by a September 2005 rating decision, which assigned a 30 percent evaluation effective August 26, 2002. A January 2006 VA treatment note recorded worsening of the Veteran's symptoms, which was new and material evidence preventing the September 2005 rating decision from becoming final. A March 2007 rating decision continued the 30 percent evaluation, and was appealed, resulting in the June 2008 rating decision currently on appeal. The Veteran testified before a Veterans Law Judge (VLJ) at a hearing in May 2012. A transcript of that hearing is of record. The Veteran did not respond to an October 2017 letter informing him that the VLJ who conducted his hearing was no longer employed by the Board and asking if he wanted a new hearing. Therefore, the Board finds that due process requirements have been satisfied. The matter was remanded in August 2012 and September 2014. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) An October 2015 rating decision denied entitlement to an earlier effective date of service connection for PTSD based upon clear and unmistakable error in a March 1986 rating decision denying service connection for PTSD. This October 2015 rating decision was not appealed and became final. With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Entitlement to a Rating Higher than 30 Percent Prior to March 23, 2006 The Veteran contends that he should be assigned a 100 percent evaluation for his PTSD backdated to the 1980s. The initial question before the Board is how far back it may go in considering the appropriate rating for the Veteran's PTSD. The effective date of an award based on a claim for increase in a veteran's disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an award based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.156(b), 3.160, 20.201, 20.302. Unless the Chairman of the Board orders reconsideration or one of the other exceptions to finality applies, all Board decisions are final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100; see also 38 U.S.C.A. §§ 511(a), 7103(a), 7104(a). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with a claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In this case, the increased rating claim was received on March 23, 2006. However, as noted in the introduction, the September 2005 rating decision granting service connection for PTSD with an evaluation of 30 percent became did not become final because new and material evidence, specifically a January 2006 VA treatment note indicating accentuation or worsening of PTSD symptoms, was received. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Because the September 2005 rating decision granting service connection was not final, the Board may consider the entire period for which the Veteran is service-connected, even though it is prior to the March 23, 2006 claim for an increased rating. The Veteran was service-connected effective August 26, 2002. The Veteran has argued that the March 1986 rating decision that denied service connection for PTSD should not be considered final because it was sent to an old address, and he did not receive notification. Although the March 1986 rating decision itself does not indicate an address for the Veteran, a May 1986 notification letter, which includes instructions on how to appeal and typically accompanies a rating decision, was sent to the address indicated by the January 1986 VA examination report. This was the most current address of record. There is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including in mailing notice. See Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926). In order for the presumption to attach, VA must mail notice to the latest address of record. See Ashley, 2 Vet. App. at 309. While Ashley concerned the mailing of a Board decision, the same law applies to mailing of notice of an RO decision. See Mindenhall v. Brown, 7 Vet. App. 271 (1994); see also Saylock v. Derwinski, 3 Vet. App. 394, 395 (1992). In this case, the RO mailed the March 1986 rating decision to the latest address of record, meaning that the presumption attaches. To rebut this presumption, the appellant, in addition to asserting non-receipt, bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. See Ashley, 2 Vet. App. at 309. An assertion of non-receipt, standing alone, does not rebut the presumption of regularity in VA's mailing process. See Jones v. West, 12 Vet. App. 98, 102 (1998). Instead, the clear evidence requirement mandates not only a declaration by the appellant of non-receipt, but additional evidence to corroborate the appellant's declaration. See Santoro v. Principi, 274 F.3d 1366, 1370 (Fed. Cir. 2001). In this case, the evidence of record does not corroborate the Veteran's declaration. Therefore, the presumption has not been rebutted, and the March 1986 rating decision is considered final. The Board recognizes the argument put forth in the November 2009 correspondence that the Veteran did not follow up on his first claim because his PTSD and Hepatitis B symptoms rendered him incapable of right action. Although the Veteran was hospitalized in 1985 due to his PTSD symptoms and related suicidal and homicidal ideation, the record does not support a finding that the Veteran was not competent, or was otherwise incapable of appealing a claim. The Board must apply VA regulations and find that the March 1986 rating decision became final. As was noted above, the October 2015 rating decision denying entitlement to an earlier effective date of service connection for PTSD based upon clear and unmistakable error in a March 1986 rating decision denying service connection for PTSD was not appealed. Therefore, the issue of entitlement to an earlier effective date for service connection for PTSD is not on appeal, and will not be further discussed. The next question before the Board is the appropriate evaluation to assign for the Veteran's PTSD symptoms. 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 entitlement to a higher initial evaluation during the rating period on appeal, staged ratings must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). 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 30 percent disability rating is assigned for a mental disorder 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, or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. 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. Id. 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 Board finds that in this case, the Veteran's symptoms most closely approximately the criteria for a rating of 50 percent. A March 2003 VA treatment note indicates that the Veteran complained of an inability to sleep, and being up all night. In April 2003, he remained socially and emotionally detached, and stayed in the house or his room most of the time. He reiterated his difficulty sleeping, and reported his total sleep at night was 3-4 hours, leaving him tired in the morning. His wife reported that he was grouchy in the morning due to his lack of sleep. His difficulty sleeping was related to a feeling of insecurity, uneasiness, and sometimes increased vigilance and fearfulness at night, as well as recurring bad dreams about his experiences in Vietnam. The Veteran reported pacing at night, peeping through windows, and rechecking doors. A February 2004 letter from the Veteran's wife stated that the Veteran would not come to bed at night, and she saw that he would sit alone in the living room and check the doors and windows. The Veteran eventually told her that he did not wish to sleep in the same bed as her because he did not want her to witness his violent nightmares. The Veteran's wife confirmed these nightmares in which he kicks, punches, and moans, and stated that they needed to get a king-size bed so she could move out of his reach and avoid being hurt by his actions while dreaming. She also wrote that on many nights, when he feels unable to get his fears and anxiety under control, she sleeps alone. In April 2004, he spoke of feeling overwhelmed at times, but relying on church activities and emotional support from church members. He was beginning to trust people more. In June 2004, the Veteran reported thrashing around in his sleep such that he accidentally struck his wife in the head, and his sleep was described as very poor and restless. Later that month he discussed stress related to co-workers receiving a raise at work when he did not, and continued to attend online classes. He had episodes of increased anxiety, and disturbed or restless sleep, as well as periods of difficulty falling and staying asleep. He reported periods of irritability at work, but denied aggressive hostile outburst. In July 2004, his symptoms were described as having moderate impairment in social and occupational functioning. An October 2004 treatment note indicated that he withdrew and stayed by himself in a bedroom, without talking to his wife. He was described as looking tired and exhausted, and related his fatigue to chemotherapy as well as PTSD symptoms. The Veteran had discussed on multiple occasions stress regarding the permanency of his employment, and in January 2005, the Veteran reported that everyone in his department was fired except for him, and he was told his job would remain because he was not part of the problem in his department. A March 2005 letter from the Veteran reported that he is exhausted all day and angry because normal sleep evades him. He reported that recently his wife woke him up and he realized he had his hands around her throat. He reported distancing himself from loved ones because the smallest thing irritates him. The Veteran stated that he took a leave of absence from his college courses because he was so stressed, and because he would forget things. An April 2005 vocational rehabilitation note indicated that he was writing a letter requesting that he be able to retake a course and place his degree on hold because of medical issues at this time, specifically chemotherapy for Hepatitis B causing him to become fatigued. The Veteran continued to work 40 hours a week. A VA examination was conducted in September 2005. The examiner reported doing well at work, although he complained of memory problems, and stated that everyone in his department was fired except for him. He was married to his fourth wife for almost four years, and both the Veteran and his wife were positive about the marriage, although the Veteran's wife stated that he is not very emotionally available. The Veteran reported being very close to two of his daughters and only somewhat close to the third. He had 3-4 close friends. They lived in different parts of the country and maintained the friendship through phone calls. He was an elder in his church. Although the Veteran reported sometimes hearing voices involving religious content or seeing something in his peripheral vision for a moment, the examiner concluded that neither of these are suggestive of a psychotic condition. He denied delusions of reference, bizarre delusional beliefs, and grandiose thoughts. When asked about paranoia, he stated others are jealous of him at work because he is doing well. He reported sleeping only 3-4 hours per night, and having poor energy since Vietnam. He also reported concentration problems. The examiner concluded that the Veteran's PTSD had a mild impact upon his level of functioning because he had a positive marriage, good friends, and functioned well at work. In January 2006, a VA treatment note indicated accentuation of PTSD symptoms in conjunction with worsening of his general medical condition, as well as difficulty with his marriage. He had depression such that the physician added an additional antidepressant to his medication. His mood was withdrawn and dysphoric. A vocational rehabilitation note from that month indicated that he would be unable to return to school that semester because of his health, and went on to discuss medication for chemotherapy. Although the Veteran's chemotherapy treatment has affected his fatigue in October 2004, the record reflects that the Veteran consistently complained of difficulty sleeping, that he was noted being tired and grouchy because of poor sleep as early as April 2003, and that he reported difficulty sleeping and low energy since Vietnam. Restriction to 3-4 hours of sleep necessarily reduces productivity, and the record reflects that trouble sleeping has been an ongoing problem throughout the period of service connection. The record also reflects that although his relationship with his current wife is ultimately a positive one, its success is the result of considerable work by both the Veteran and his wife. This is the fourth marriage for the Veteran. The Veteran has been hesitant to sleep in the same bed as his wife due to his violent nightmares, and the couple needed to buy a larger bed to allow the Veteran to evade his violent movements while sleeping. In spite of this precaution, the Veteran has struck or choked his wife while sleeping. The Veteran and his wife have also discussed his difficulty showing affection and emotional intimacy. Therefore, the record reflects that the Veteran suffers from reduced reliability as a husband, and that he has difficulty in establishing and maintaining an effective relationship, even though he and his current wife have thus far succeeded in creating a supportive partnership. Although the Veteran's symptoms worsened in January 2006, the worsening was not so dramatic as to require staged ratings. Considering the consistency of these complaints, the record does not support a finding that he is generally functioning satisfactorily with only occasional decrease in functioning. Therefore, the Veteran's symptoms most closely approximate the criteria for a 50 percent rating. The record does not support the assignment of a 70 percent rating. The Veteran has performed his duties effectively at work in spite of his PTSD symptoms, as indicated by the fact that he was retained while the rest of his department was fired. Although the Veteran stated in a March 2005 correspondence that he had to take a leave of absence from college courses due to his PTSD symptoms, the April 2005 vocational rehabilitation record indicates that he put his degree on hold because of symptoms related to his chemotherapy. Therefore, the record does not support a finding of deficiency in the area of schooling because of PTSD alone. Although the Veteran has difficulty with marital relationships, his current marriage is ultimately a positive one, and he reported in his September 2005 examination that he had 3-4 close friends and was close to two of his daughters and somewhat close with the third. The record thus reflects that difficulty in establishing and maintaining relationships, as contemplated by the 50 percent evaluation, is a more appropriate description than deficiency in the area of family relations comparable to inability to establish and maintain effective relationships, as contemplated by the 70 percent evaluation criteria. There is no indication of deficiency in judgment. Although he has intermittently reported difficulty with memory and concentration, memory impairment is contemplated by the 50 percent criteria. During the period on appeal he has regularly been found to have organized thought processes without delusion or suicidal ideation. Therefore, there is no deficiency in the area of thinking. For these reasons, even if the Veteran's ongoing depression or irritability was considered a near-continuous deficiency, the Veteran could not be considered deficient in most areas, and a 70 percent rating is not appropriate. 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). ORDER Entitlement to rating of 50 percent and no higher for posttraumatic stress disorder (PTSD) from August 26, 2002 through March 22, 2006, and no earlier, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD A. Budd, Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs