Citation Nr: 1804159 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 09-03 936 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an effective date prior to May 24, 2011, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 50 percent for PTSD. 3. Entitlement to a rating in excess of 30 percent for coronary artery disease (CAD). 4. Entitlement to an initial rating in excess of 10 percent for hypertension (HTN). 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 24, 2011. REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney at Law ATTORNEY FOR THE BOARD Kate Sosna, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2012 (PTSD and CAD) and June 2016 (HTN) by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Board remanded the issues of entitlement to an earlier effective date for the grant of service connection for PTSD, entitlement to a higher initial rating for PTSD, entitlement to an increased rating for CAD, and entitlement to service connection for HTN. Thereafter, in a June 2016 rating decision, the RO granted service connection for HTN. The Veteran has since perfected an appeal as to the propriety of the initially assigned rating. The Board finds that a claim of entitlement to a TDIU prior to May 24, 2011, has been raised as part and parcel of the Veteran's claims for increased ratings and has included such issue on the title page. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issues of entitlement to increased ratings for CAD and HTN, and entitlement to a TDIU prior to May 24, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. VA received the Veteran's original claim for service connection for PTSD on May 24, 2011. 2. In a February 2012 rating decision, service connection for PTSD was granted, effective May 24, 2011, the date VA received the Veteran's original claim. 3. For the entire appeal period, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to his psychiatric symptomatology, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 24, 2011, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 2. The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matters The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist. See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Entitlement to an Earlier Effective Date for the Award of Service Connection for PTSD The Veteran contends that an effective date prior to May 24, 2011, is warranted for the grant of service connection for PTSD. Notably, neither the Veteran nor his representative has provided any evidence or argument in support of this claim. Turning to the law governing effective dates for claims for service connection, VA regulations provide that, unless specifically provided otherwise, the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service; otherwise, the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. Prior to March 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the 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. 38 C.F.R. § 3.155. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). After a review of the evidence, the Board finds that the earliest claim for service connection for PTSD was received on May 24, 2011. Specifically, a thorough review of the record prior to May 24, 2011, does not reveal any formal or informal claim for PTSD. Indeed, neither the Veteran nor his former representative so much as mentioned a psychiatric disorder until the May 24, 2011, claim. Moreover, in an August 2011 statement to his representative, the Veteran referenced a recent claim for PTSD; he made no mention of any previous claim for such disorder. Additionally, while the Veteran did file claims prior to his May 24, 2011, claim, such did not reference or allude to any claim for service connection for a psychiatric disorder. Ultimately, based on the laws and regulations previously cited, and after reviewing the totality of the evidence, the Board finds that an effective date prior to May 24, 2011, for the award of service connection for PTSD is not warranted. In this regard, the Board recognizes that the Veteran may have had this disability for many years. Nevertheless, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of the receipt of the Veteran's original claim for service connection for PTSD. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to May 24, 2011, for the grant of service connection for PTSD. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to May 24, 2011, for the award of service connection for PTSD. As such, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. III. Entitlement to an Initial Rating in Excess of 50 Percent for PTSD The Veteran contends that a higher rating for his PTSD is warranted due to the severity of his symptoms, to include poor sleep/insomnia, nightmares, intrusive thoughts, hypervigilance, emotional detachment, anger, exaggerated startle response, depressed mood, anxiety, mild memory problems, obsessive rituals, panic attacks, low self-esteem, avoidance, and disturbances in motivation. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999; Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran's PTSD is evaluated as 50 percent disabling under the criteria of DC 9411, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. Under DC 9411, a 50 percent rating is warranted 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 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; 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 when 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 United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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." 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Court (Court) held that the language of the general rating formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. Furthermore, in the instant case, the Veteran has not reported suicidal ideation. One factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). Pertinent to this appeal, a GAF score of 51 to 60 indicates moderate symptoms, or moderate difficulty in social, occupational, or school functioning. A GAF score of 61 to 70 reflects 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 with some meaningful interpersonal relationships. While the Rating Schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130. Parenthetically, the Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, which is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). The Board finds that an initial rating in excess of 50 percent for PTSD is not warranted as there is no probative evidence, either lay or medical, to establish the presence of symptoms of the type and severity necessary to warrant a higher rating. More importantly, there is no indication that the Veteran's PTSD symptoms resulted in 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 the inability to establish and maintain effective relationships. Initially, in light of opinions expressed by October 2012 and September 2014 VA examiners that the Veteran suffers from psychiatric symptoms related to his service-connected CAD, the Board has attributed all of the objective psychological findings during the examinations of record to the Veteran's service-connected PTSD as all psychological symptoms have been deemed to be related to the Veteran's military service. Regarding the Veteran's social functioning, during the entire appeal period, he has maintained a lengthy marriage with his wife of more than 26 years and he regularly described his family life as very positive. See September 2011, October 2012, and September 2014 VA examination reports. Additionally, he reported seeing his step-daughter (whom he considers his biological daughter) and her son regularly and endorsed having several friends. Id.; see also April 2016 VA treatment record in which the Veteran reported babysitting for his grandson. At the September 2014 VA examination, the Veteran reported strong family involvement and support, and also endorsed going out socially with his wife, being a member of the Disabled Veterans of America, and staying busy around the house with chores and projects. While the Veteran expressed some discomfort in dense crowds at the September 2011 VA examination, he reported these feelings did not markedly interfere with his social activities and that he enjoyed most activities. Turning to his occupational impairment, the Veteran has routinely reported through the course of the appeal that he retired from employment due to his age, not because of his PTSD. See January 2007, March 2009, and April 2016 VA treatment records; June 2011 CAD examination; September 2011 PTSD examination; October 2012 CAD and PTSD examinations; and September 2014 PTSD examination. Indeed, at a June 2011 CAD examination the Veteran again reported that he had retired due to his age and not his medical conditions; he further noted that he would most likely still be employed if he so desired. Moreover, there is no indication the Veteran's PTSD ever interfered with his previous employment as the owner and operator of a trucking business or as a custodian in a local high school. In addition to the foregoing analysis, it is worth mentioning that the Veteran has never received psychological treatment aside from receiving prescription sleep aids. As such, the medical evidence of record is largely limited to the three VA examinations. During those examinations, the clinicians found the Veteran to be a stoic individual and an accurate historian. They also noted that his PTSD symptoms were mild to moderate, without more severe manifestations, and assigned GAF scores ranging from 58 to 65. See September 2011, October 2012, and September 2014 VA examination reports. Additionally, while the 2014 examiner believed the Veteran may have been underreporting his symptoms, the examiner only opined his symptoms resulted in the lesser 30 percent criteria and any underreporting is therefore presumably encompassed by the currently assigned 50 percent rating. Given the foregoing, the Board finds that an initial rating in excess of 50 percent for PTSD is not warranted. In this regard, the Veteran maintained relationships with family and friends and stayed active in social activities. Furthermore, he reported the ability to work if he so desired and maintained an active retirement, indicating he is capable of work-like activities. Further, the Board finds the symptoms the Veteran described during the appeal (poor sleep/insomnia, nightmares, intrusive thoughts, hypervigilance, emotional detachment, anger, exaggerated startle response, depressed mood, anxiety, mild memory problems, obsessive rituals, panic attacks, low self-esteem, avoidance, and disturbances in motivation) and their resulting impact on his social and occupational functioning are contemplated by the currently assigned 50 percent rating. Similarly, while the Veteran endorsed obsessive rituals, a symptom associated with a higher 70 percent rating, the Board finds that such was not of the frequency or severity to produce deficiencies in most areas. An initial rating of 100 percent is similarly not warranted. In this regard, even considering his occasional discomfort in crowds and poor sleep, the evidence discussed above does not indicate that the Veteran's PTSD symptoms caused total social and occupational impairment. To the contrary, the evidence shows the Veteran maintained relationships and self-professed the ability to work if he so chose. Ultimately, the Board finds that the Veteran's PTSD symptoms have not resulted in occupational and social impairment in most areas or total social and occupational impairment at any point during the appeal. The Board further notes that the evidence of record reflects that the Veteran has additional symptomatology that is not enumerated in the rating schedule, including anger. See Mauerhan, supra. However, the Board finds that such symptoms do not more nearly approximate a rating in excess of the rating currently assigned under the General Rating Formula as they are not of such a duration, severity, or frequency to result in deficiencies in most areas or total social and occupational impairment. Ultimately, the Board finds that the Veteran's PTSD does not warrant an initial rating in excess of 50 percent. In assessing the severity of the Veteran's PTSD, the Board has considered the Veteran's assertions as to the type and frequency and/or severity of his symptoms, which he is certainly competent to provide. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board notes that his lay reports are credible as to his symptomatology, as they have been consistent with his reports to VA examiners, and VA examiners specifically commented in a positive manner on his credibility. However, the criteria needed to support a higher rating requires medical findings as to the impact that such symptoms have on her social and occupational functioning that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As such, his lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support the assignment of a higher rating. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected PTSD; however, the Board finds that the Veteran's symptomatology has been stable throughout the appeal. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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 May 24, 2011, for the grant of service connection for PTSD is denied. An initial rating in excess of 50 percent for PTSD is denied. REMAND In a March 2015 submission, the Veteran's representative challenged the adequacy of an August 2014 VA examination referable to his CAD. Specifically, the examiner noted there was no medical contraindication from performing METs (metabolic equivalent) testing, yet the examiner declined to actually administer such testing and instead used data from a test performed more than a year previously. The Board agrees that the failure to perform contemporaneous testing reduces the probative value of the examination and jeopardizes compliance with the July 2014 remand for an examination that documented current findings. As such, remand is required for procurement of another VA examination report. Remand is also required for procurement of outstanding records. In this regard, the Veteran has routinely cited being treated by Dr. M.K. for his CAD and HTN. See, e.g., May 2017 VA treatment record noting treatment from Dr. M.K. every six months for HTN and CAD. Unfortunately, records from Dr. M.K. have not been associated with the record since December 2012. Thus, on remand, the Veteran should be given the opportunity to identify any records relevant to the severity of his CAD and HTN, to include any records from Dr. M.K. Thereafter, all identified records should be obtained. The claim for an earlier effective for a TDIU is inextricably intertwined with the increased rating claims. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc). Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and request that he identify any outstanding records relevant to the severity of his CAD and HTN. He should specifically be requested to provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from Dr. M.K. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After procuring all available medical records, schedule the Veteran for a VA examination to determine the current level of severity of his service-connected CAD. The record must be made available to the examiner in conjunction with the examination. The examiner should provide a review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability due to his cardiac disability. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. In this regard, if METs testing is not contraindicated, such should be performed in lieu of using METs results already of record. After reviewing the record and examining the Veteran, please respond to the following: (i) Indicate whether the Veteran's CAD resulted in the symptoms noted below and, if so, please identify the date of such symptomatology: (A) more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of 30 to 50 percent; or, (B) chronic congestive heart failure; or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or left ventricular dysfunction with an ejection fraction of less than 30 percent. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs