Citation Nr: 18140437 Decision Date: 10/04/18 Archive Date: 10/03/18 DOCKET NO. 16-08 492 DATE: October 4, 2018 ORDER Entitlement to an effective date of January 30, 2013 for the grant of service connection for posttraumatic stress disorder (PTSD) is granted. Entitlement to a rating greater than 70 percent for PTSD is denied. Entitlement to a total disability based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. VA denied service connection for PTSD in a July 2009 rating decision. The Veteran did not appeal this denial, nor did he submit new and material evidence within one year of the decision. Thus, it became final. 2. The Veteran submitted an informal claim on January 30, 2013. 3. The Veteran’s PTSD has been manifested by occupational and social impairment, with deficiencies in most areas such as family relations, judgment, and mood; impaired impulse control; difficulty in adapting to stressful circumstances (including work or a worklike setting); and the inability to establish and maintain effective relationships. 4. The Veteran’s service-connected PTSD prevents him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 30, 2013 for the grant of service connection for PTSD are met. 38 U.S.C. §§ 5103, 5103A, 5107, 5108, and 5110; 38 C.F.R. §§ 3.156, 3.158, 3.160 and 3.400. 2. The criteria for entitlement to a rating greater than 70 percent for PTSD have not been approximated. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for entitlement to TDIU are approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1965 to September 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of January 2015 and March 2015 of a Regional Office (RO) of the Department of Veterans Affairs (VA). Issue 1: Entitlement to an effective date prior to April 28, 2014 for the grant of service connection for PTSD. Unless Chapter 38 of the United States Code specifically provides otherwise, the effective date of an evaluation and grant 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 the later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400. An earlier effective date may be granted prior to the date of the filing of the claim for a rating increase if it is ascertainable that an increase in disability occurred within one year prior to the filing of the claim. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). A “claim” is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). “Date of receipt” of a claim, information, or evidence means the date VA received a claim, information, or evidence. 38 C.F.R. § 3.1(r). Prior to March 2015, any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(b) (2013). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Here, the Veteran claimed service connection for PTSD in March 2009. VA denied the Veteran’s claim in July 2009. He did not appeal this decision, nor did he submit new and material evidence within one year of the decision, so the decision became final. On January 30, 2013, VA received a correspondence from the Veteran which he styled as “an informal claim for compensation benefits for PTSD.” VA processed this request, notifying the Veteran of his prior final denial in a Veterans Claims Assistance Act later dated May 7, 2013. VA subsequently granted service connection in January 2015, and it assigned an effective date of April 28, 2014, which it stated was “the earliest date the medical evidence shows you have a clinical diagnosis of PTSD.” The Veteran, through counsel, has not argued for a precise effective date. Instead, counsel has argued that the Veteran was treated for PTSD as early as 2010. The undersigned concurs, but notes that the effective date for reopened claims, as here, is the date the request to reopen was received, i.e., January 30, 2013. Therefore, the undersigned finds that the proper effective date is January 30, 2013. Issue 2: Entitlement to a rating greater than 70 percent for PTSD. Increased Ratings 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 considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. PTSD VA has rated the Veteran's PTSD as 70 percent disabling. The Board has assigned an effective date of January 30, 2013 for the grant of service connection and for this rating. Therefore, the undersigned will determine if he merits a higher rating from this date. A 70 percent evaluation is assigned when a veteran’s psychiatric disability causes 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 an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 100 percent rating is assigned when a veteran’s psychiatric disability causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s psychiatric symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA examined the Veteran for compensation purposes in November 2013 and January 2015, and the Veteran submitted a Disability Benefits Questionnaire (DBQ) from October 2015. The medical professionals who examined the Veteran found that his symptoms corresponded to the criteria supporting a 10 percent evaluation (2013) and 70 percent evaluation (both 2015 examinations). Because VA has rated the Veteran as 70 percent disabled during the pendency of the claim, the undersigned only needs to consider if he merits the next highest rating – 100 percent. Although socially isolated with a history of strained family relations, the Veteran has had a consistently strong working relationship with his son. Indeed, the 2013 examiner noted the Veteran described the relationship as “excellent.” Moreover, the examiner who completed the DBQ in 2015 confirmed this ongoing relationship. Therefore, he was not totally socially and occupationally impaired, and he thus does not merit a 100 percent rating. Issue 3: Entitlement to a TDIU. TDIU – Background Law A request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); see also 38 C.F.R. § 3.156(b). If the claimant or the evidence reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted because of that disability. Id. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. TDIU – Analysis The Veteran contends that he is unable to maintain substantially gainful employment because of his PTSD. VA has rated his PTSD as 70 percent disabling. Therefore, the Veteran meets the schedular percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). The only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation because of his service-connected PTSD. VA denied the Veteran's TDIU claim in March 2015 because the Veteran failed to return the TDIU application the agency sent him. Notwithstanding this omission, the Veteran, through counsel, submitted the DBQ cited above, which Dr. R.W. supplemented with a statement detailing how PTSD impacted the Veteran's employment. Dr. R.W. noted the Veteran's PTSD would cause him to miss work 3 or more times per month, leave work early 3 or more times per month, and would make him unable to focus more than 3 days per month during an 8-hour workday. Dr. R.W. also stated that the Veteran would respond to work criticism in an angry manner but would not become violent more than once per month. The Veteran's counsel also submitted a report authored by Dr. S.B., a certified vocational evaluator. Dr. S.B. found, upon review of the Veteran's claims file and with specific citations thereto, that the "Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service connected PTSD." (Continued on the next page)   Based upon this evidence, and considering the totality of the circumstances, the Board finds that the Veteran's PTSD precludes him from gainful employment. Therefore, the Board grants a TDIU. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel