Citation Nr: 18141834 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 15-27 461A DATE: October 11, 2018 ORDER Entitlement to a rating in excess of 50 percent for service-connected psychiatric disorder, posttraumatic stress disorder (PTSD), adjustment disorder with mixed anxiety and depressed mood with cannabis abuse, is granted. Entitlement to an earlier effective date for service-connected psychiatric disorder prior to August 1, 2012 is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt, throughout the entire timeframe on appeal, the Veteran’s PTSD was manifested by symptoms consistent with occupational and social impairment involving deficiencies in most areas, including work, family relations, thinking and mood. 2. The Veteran’s service-connected psychiatric disability was diagnosed at least as early as 2010, and the reopened claim on appeal was received in November 10, 2010. CONCLUSIONS OF LAW 1. Resolving doubt in favor of the Veteran, the criteria for a rating of 70 percent, for the Veteran’s service connected PTSD, but no higher, have been met for the duration of the appeals period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an earlier effective date, from November 10, 2010, in regard to service connection for psychiatric disorder is met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017); 38 C.F.R. § 3.155 (in effect prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1984 to March 1994. The Veteran was deployed in part to Southwest Asia. He has combat experience. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision of the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2018, the Veteran waived his right to have the new evidence he submitted considered by the RO. Duties to Notify and Assist A VCAA letter dated in December 2010 fully satisfied the duty to notify provisions. See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b)(1) (2017). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes that VA’s duty to assist has been satisfied. The Veteran’s service treatment records and VA medical records are in the Veteran’s claim file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The United States Court of Appeals for Veterans Claims (Court) has also held that VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017). The RO provided the Veteran appropriate VA examinations, as explained below. The VA examination reports are thorough and supported by the other treatment evidence of record. The Board concludes the examination reports in this case are adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). 1. Entitlement to a rating in excess of 50 percent for service-connected psychiatric disorder, PTSD, adjustment disorder with mixed anxiety and depressed mood with cannabis abuse, is granted. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. Notably, the term “such as” in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s disability that affect the level of occupational and social impairment. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows (See 38 C.F.R. § 4.130, Diagnostic Code 9411): 30 percent: 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). 50 percent: 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 establishing effective work and social relationships. 70 percent: 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. 100 Percent: 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. Facts and Analysis In a September 2010 VA treatment record, the Veteran reported getting feedback at home and work about his behavior indicating he is rigid and distant. It was noted that the Veteran is disconnected from his family and has limited range of emotions. He reported severe PTSD symptoms. The Veteran appeared for a VA examination in February 2011. Anxiety disorder was diagnosed with mild symptoms. The Veteran reported a tumultuous first marriage. He was in a second marriage which was going well. He reported combat-related nightmares a few times a year. The Veteran was working full-time as a nurse and had been employed there for the past four years. He reported irritability with coworkers. The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation. In July 2012, the Veteran was hospitalized for depression, which manifested with suicidal ideation. The Veteran appeared for a VA examination in October 2012. The examiner diagnosed adjustment disorder with mixed anxiety and depressed mood, PTSD, and cannabis abuse in early full remission. The examiner stated that the diagnoses have overlapping symptoms. The examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with normal routine behavior self-care and conversation. The examiner stated the majority of social and occupational impairment is due to current psycho social issues, such as no job, relocation, and marital dissolution. The Veteran reported marital dissolution and estrangement from children. The examiner noted symptoms of depressed mood, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, poor appetite, and low energy. He reported he stays in the house and watches TV all the time. The Veteran had left his job on a mutual decision between him and his employer due to him relocating due to his wife leaving him. The Veteran’s Vocational Rehab provider, D.S., completed an assessment, dated May 2013, that indicates the veteran reported depression, anxiety, loss of sleep, nightmares, daytime sleepiness and low energy due to his PTSD. He also described “repeated conflicts between himself and coworkers and supervisors. Ultimately, the examiner stated that due to combined effect of his PTSD and service-connected physical disabilities “continued employment as a Licensed Nurse is no longer appropriate for this veteran.” The Veteran appeared for a VA examination in May 2015. The examiner diagnosed PTSD, major depressive disorder, moderate, recurrent, and unspecified personality disorder. The Veteran reported use of cannabis. The examiner noted that the symptoms overlap significantly. The examiner found occupational and social impairment with reduced reliability and productivity. The Veteran reported he was unemployed and had difficulty maintaining employment due to problems interacting with people. He reported limited, close relationships. He gets along with his mother and goes golfing weekly with friends. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. The Veteran reported intrusive thoughts, nightly approximately twice weekly, frequent anxiety and depression, hypervigilance, sleeping with a knife under his bed, isolation, and irritability. The examiner opined that the Veteran’s ability to maintain employment is moderately impaired by his mental health problems, with reduced reliability and productivity. In March 2017, Dr. J.M. rendered an opinion based on interview with the Veteran and review of the claims file, stating that the Veteran likely had PTSD upon separation from service to present. In April 2017, a vocational assessment was conducted by W.C., stating that it is at least as likely as not that the Veteran is precluded from securing and following a substantially gainful occupation, since 2012, due to PTSD, particularly when the limitations are combined with his service-connected right knee and left hand conditions. This opinion was rendered after reviewing portions of the claims file. The Veteran appeared for a VA examination in May 2017. The examiner diagnosed PTSD with panic attacks, major depressive disorder, severe, recurrent, and unspecified personality disorder. The examiner noted that the symptoms overlap significantly. The Veteran reported heavy use of marijuana. The examiner found occupational and social impairment with deficiencies in most areas. The Veteran was unable to live independently due to severe anxiety. He stated his anxiety is so severe he is vomiting every morning before leaving the house. He denied close relationships, including relationships with his children, and stated he lacks the resources and motivation to participate in activities. The Veteran reported finishing classes at a college, but had significant difficulty completing the program. The examiner noted depressed mood, anxiety, suspiciousness, panic attacks more than once weekly, near constant panic or depression, chronic sleep impairment, memory loss and impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideation. In regard to functional impairment, the examiner found severe limitations in the Veteran’s ability to work cooperatively and effectively with coworkers, supervisors, and the public, and ability to maintain task persistence and pace. In May 2017, the Veteran’s mother submitted a lay statement. She described severe symptoms and problems with the Veteran’s personal life and difficulties in maintaining employment. An October 2017 statement by Dr. R.G. indicates that the Veteran has been unable to work since 2012 due to severe tooth pain, bowel disorder, and coronary artery disease. Giving the Veteran the benefit of the doubt, the Board finds that the record supports occupational and social impairment, with deficiencies in most areas, for the pendency of the appeal. The record supports that the Veteran suffers disruptions to his family life, work life, thinking and mood due to his service-connected psychiatric disorder, which has consistently manifested with severe symptoms over the appeals period. Throughout the appeals period, serious psychiatric symptoms were recorded as those contemplated by the 70 percent rating. The Veteran has exhibited suicidal ideation; consistent panic or depression affecting the ability to function independently, appropriately and/or effectively; irritability; difficulty in adapting to stressful circumstances (including work or a work-like setting); and the inability to establish and maintain effective relationships. While the February 2011 VA examination noted mild symptoms, a few months earlier, in a September 2010 VA treatment record, the Veteran reported getting feedback at home and work about his behavior indicating he is rigid and distant. It was noted that the Veteran is disconnected from his family and has limited range of emotions. He reported severe PTSD symptoms. In July 2012, the Veteran was hospitalized for depression, which manifested with suicidal ideation. The Veteran’s family life has been consistently impaired by psychiatric symptoms, as his relationships with his former wives and children have suffered. In October 2012, he reported marital dissolution and estrangement from his children, and that he stays in the house and watches TV all the time. While he has at times had full-time employment as a licensed nurse, a May 2013 vocational assessment indicated that due large part to psychiatric symptoms “continued employment as a Licensed Nurse is no longer appropriate for this veteran.” The Veteran has also consistently reported symptoms of anxiety and VA examiners have consistently noted anxiety. During the May 2017 VA examination, it was noted that the Veteran was unable to live independently due to severe anxiety. He stated his anxiety is so severe he is vomiting every morning before leaving the house. However, the record does not support that the Veteran suffers from total occupational and social impairment due to his service-connected psychiatric disability alone. He has reported a positive relationship with his mother and at times reported hobbies including golfing. During the May 2017 VA examination, the Veteran reported that he was taking classes at Cincinnati State in Liberal Arts and while it was difficult to do so he finished his program in December 2016. Further, his symptoms are not sufficiently severe to match the 100 percent rating. He has not manifested symptoms of 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Overall, the constellation of symptoms associated with the Veteran’s PTSD do not correspond to the assignment of a 100 percent schedular disability rating. By this decision, the Board is resolving any doubt in the Veteran’s favor to award an increased rating for disability due to PTSD to 70 percent over the entire appeal period. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The competent evidence of record does not indicate that the Veteran’s symptomatology had worsened to a level more severe than 70 percent disabling at any point during this appeal period. See 38 C.F.R. § 4.1. 2. Entitlement to an earlier effective date for service-connected psychiatric disorder prior to August 1, 2012 is granted. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection benefits shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application for such benefits. The effective date shall be the later of either the date of receipt of claim, or the date entitlement arose. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(b)(2)(i) (2017). The terms “claim” and “application” mean 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) (2017). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2017). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a) (2017). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the United States Court of Appeals for Veterans Claims (Court) held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). In such cases where a claim is reopened after receipt of new and material evidence, the appropriate effective date will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim. 38 U.S.C. 5110; 38 C.F.R. 3.400. Here, by August 1998 rating decision, the Los Angeles, California RO denied service connection for PTSD. The Veteran did not file a Notice of Disagreement to this decision. Therefore, the August 1998 rating decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). The rating decision indicated that the Veteran’s STRs were reviewed by the August 1998 rating decision. Therefore, the Board finds that the STRs were associated with the claims file and reviewed at the time the August 1998 decision was made. In November 10, 2010, the Veteran submitted a claim again for PTSD. By November 2011 rating decision, the Phoenix, Arizona RO confirmed the previous denial for PTSD. In July 2012, the Veteran expressed disagreement with the decision. By November 2012, the Cleveland, Ohio RO granted service connection for psychiatric disorder at a 50 percent rating. In February 2013, the Veteran filed a Notice of Disagreement to this decision, requesting a higher, initial rating. This NOD was addressed by the July 2015 Statement of the Case, for which the Veteran perfected an appeal. Therefore, November 10, 2010 is the receipt of the reopened claim in this case, as that date represents the onset of the higher initial rating claim on appeal. The evidence supports that the Veteran was diagnosed with psychiatric disorder attributed to service prior to November 2010. VA treatment records reflect in September 2010 the Veteran was diagnosed with anxiety, rule out PTSD, and reported symptoms since leaving the service. Therefore, the later of the date entitlement arose or the date of receipt of the reopened claim is November 10, 2010. 38 U.S.C. 5110; 38 C.F.R. 3.400. Entitlement to an earlier effective date for service-connected psychiatric disorder prior to August 1, 2012 is granted, to November 10, 2010. REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. The evidence of record, described above, is conflicting as to whether the Veteran’s service-connected disabilities render him unemployable. Further, while there are recent examinations as to mental disability and irritable bowel syndrome (IBS), there is not a recent examination as to the service-connected right chondral fracture and left forearm disabilities, which have been referenced by private examiners as contributing to unemployability. As such, a VA examiner’s opinion is requested to consider the conflicting evidence of record and render an opinion as to the current severity of the right chondral fracture and left forearm, and the Veteran’s service-connected disabilities’ impact on his employability. The matter is REMANDED for the following action: 1. In regard to the claim for TDIU: (a.) Schedule the Veteran for an examination by an appropriate clinician regarding the current severity of his residuals of right chondral fracture and residuals of left forearm injury. (b.) The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of all service-connected disabilities on employment. The examiner should identify all limitations or functional impairment caused solely by service-connected disabilities, namely psychiatric disability, right chondral fracture, left forearm, IBS and acne rash. 2. After the above is complete, readjudicate the Veteran’s claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond KRISTI GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev