Citation Nr: 18143321 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-28 560 DATE: October 18, 2018 ORDER Entitlement to an effective date of service connection for posttraumatic stress disorder (PTSD) earlier than June 22, 2015 is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s petition to reopen his previously denied claim for service connection for PTSD was received on June 22, 2015; the evidence of record does not contain evidence of any other event warranting service connection prior to that date. 2. The evidence of record does not show that the Veteran’s service connected conditions have rendered him unable to obtain or maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of service connection for PTSD earlier than June 22, 2015 have not been met. 38 U.S.C. § 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.400. 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 501, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1969 to February 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued in December 2015 and February 2016. 1. Entitlement to an effective date of service connection for PTSD earlier than June 22, 2015 The Veteran has been awarded an effective date of June 22, 2015, for his award of service connection for PTSD, and seeks an earlier date. Specifically, he seeks an effective date of August 7, 2009, which corresponds to the date that he filed a claim for service connection for any mental disorder that was denied in an October 2009 rating decision. In general, the effective date of an evaluation and an award for compensation under VA regulations is the date that a claim is received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. This general rule is true of both original claims, and claims to reopen decisions that were previously denied. Id. This rule contains several exceptions. For instance, where a grant of service connection is provided based on a liberalizing law or administrative regulation, the effective date is fixed based on the facts found, and can be as early as the effective date of the law or regulation. 38 U.S.C. § 5110; 38 U.S.C. §§ 3.114(a), 3.400(p). Additionally, where new and material evidence is submitted prior to one year after a decision or while an appellate decision is pending, the effective date is calculated as if the previous negative decision had not been rendered. 38 U.S.C. § 501, 38 C.F.R. § 3.400(q). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). As previously described, the Veteran previously applied for service connection for “any mental disorder” on August 7, 2009. That claim was denied in an October 14, 2009 rating decision. The Veteran did not file a notice of disagreement with that decision, nor did he provide any new and material evidence within one year of that decision. Consequently, that decision became final in October 2010. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), (b), 3.156(a), (b), 3.160(d), 20.1103. On June 22, 2015, the Veteran filed a new claim for PTSD. Service connection was granted in a December 2015 rating decision, and the effective date of the award was fixed as June 22, 2015, the date the Veteran’s new claim was received. This decision acknowledged that the Veteran had previously raised a claim for a mental disorder that had been denied. Consequently, the Veteran’s June 2015 claim is correctly understood as a claim to reopen the claim from 2009. This was explained to the Veteran in a June 2016 Statement of the Case (SOC). To the extent that the Veteran is seeking an effective date of August 2009 because he believes that the general rule is that VA regulations provide for an effective date of the original claim when a claim to reopen is subsequently granted, VA regulations do not permit an effective date to be settled in that manner. In fact, the general rule is the opposite. Where a claim for service connection was previously denied and a claim to reopen is subsequently granted, the effective date is generally the date that the claim to reopen was received. 38 U.S.C. § 5110, 38 C.F.R. § 3.400. To the extent that the Veteran hopes to obtain an earlier effective date for his PTSD based on the submission of new and material evidence, the record does not support that either. While VA regulations do provide that where new and material evidence is received within a year of the issuance of a decision denying the claim (or prior to the determination on appeal), the effective date should be fixed as if the earlier denial had not been rendered. 38 U.S.C. § 5110, 38 C.F.R. § 3.400(q). However, in this case, the Veteran did not submit any evidence or any correspondence relevant to his claim for a mental disorder for more than 5 years after his claim was denied in October 2009. This evidence was simply submitted too late for the Veteran to receive an effective date as if the October 2009 decision had never happened. Id. Finally, the codesheet that accompanied the December 2015 rating decision indicates that the grant of service connection for PTSD in this case was the result of an “easing standard,” and refers to “combat/fear.” This appears to be a reference to the changes made to 38 C.F.R. § 3.304(f) in 2012 that provide that a veteran’s lay testimony alone may establish the occurrence of an in-service stressor when a VA psychiatrist or psychologist confirms that a veteran’s PTSD is due to hostile military or terrorist activity and the stressor is consistent with the characteristics of the veteran’s service. As previously described, where the laws or regulations that govern a claim are liberalized, it is sometimes possible, depending on the facts found, for veterans whose claims are subsequently granted to receive effective dates as early as the date that the new laws became effective. 38 U.S.C. § 5110, 38 C.F.R. § 3.114(a). However, the 2012 changes to 38 C.F.R. § 3.304(f) that govern the type of evidence VA may use to determine whether an in-service stressor occurred for the purposes of adjudicating PTSD claims is not a liberalizing regulation. See Stressor Determinations for PTSD, 75 Fed. Reg. 39843 (July 13, 2010) (“The effective date of benefits awarded pursuant to this rule will be assigned in accordance with the facts found but will not be earlier than the date of claim. 38 U.S.C. 5110(a)). Consequently, despite the references to an “easing standard” and “combat/fear” on the December 2015 codesheet, the circumstances of the Veteran’s case do not permit VA to assign an earlier effective date based on the changes to the law in 2012. For the reasons explained above, the evidence of record does not warrant an effective date earlier than June 22, 2015 for the Veteran’s award of service connection for PTSD. In reaching this conclusion, the Board has considered the reasonable doubt doctrine, but the evidence preponderates against the Veteran’s claim. Ortiz, 274 F.3d 1361. 2. Entitlement to TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. In determining whether a veteran is entitled to a total disability rating based upon individual unemployability, neither his nonservice-connected disabilities nor his advancing age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can actually find employment. Id. After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s sole service-connected disability is his PTSD, which is rated 70 percent disabling. Consequently, the Veteran meets the schedular percentage requirements to analyze his claim for TDIU. 38 C.F.R. § 4.16(a). The remaining question is whether the evidence of record supports a conclusion that the Veteran’s PTSD has rendered him unable to obtain or maintain substantially gainful employment during or proximate to the appeal period. There is little evidence directly related to the Veteran’s work history during the period on appeal, and the Veteran has not provided any, despite being invited to in January 2016. Just prior to the appeal period, May 2015 VA treatment records document that the Veteran was reporting severe anxiety. He also reported other symptoms of hypervigilance, hyperarousal, irritability, concentration difficulties, war related nightmares, flashbacks, emotional numbness, negative view of the world, and inability to experience positive feelings. The treatment provider noted that the Veteran had retired in 2013, but there is no information about the circumstances of the retirement included in the notes. The Veteran explained that his symptoms had recently increased in severity, to the point where his wife was living apart from him. He also reported discrete episodes of racing thoughts, pressured speech, distractibility and decreased need for sleep. These symptoms last about 2 days followed by periods of feeling normal. The Veteran had a depressed mood. The provider also noted pressured speech, an anxious mood, with an anxious, depressed, constricted and stable affect, and moderate to severe psychomotor agitation. In June 2015, the Veteran reported feeling better with his new medication. His symptoms had improved, but he had residual insomnia and nightmares. The provider assessed his mood as depressed, but the Veteran was reuniting with his wife. In September 2015 VA treatment records, the Veteran indicated that his nightmares had decreased, but that he continued to have hypervigilance, hyperarousal, and irritability. The provider also noted less depression and an “okay” mood during the examination. In October 2015 VA treatment records, the Veteran reported depression and anxiety, stating that he felt unable to relax. He reported friction with his wife and a recent conflict with his brother-in-law. He felt that he was always short with people and complained of nightmares, irritable mood, depression, and sleep impairment. In November 2015 VA treatment records, the Veteran reported that he continued to remain active in daily life, and reported doing relatively well. The December 2015 VA examination assessed the Veteran as having occupational and social impairment with reduced reliability and productivity. The examiner indicated that the Veteran retired in 2007 and that his social impairment was due to PTSD. The examiner noted disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and obsessional rituals which interfere with everyday life. In January 2016 VA treatment records, the Veteran reported anxiety due to a health concern, but he was considering filling his time doing volunteer work. March 2016 VA treatment record noted that the Veteran had episodic anxiety that had decreased in intensity. Based on this evidence, the Board finds that the evidence of record preponderates against a finding that the Veteran’s PTSD has rendered him unable to obtain and maintain substantially gainful employment. Though his symptoms seem to have caused problems in many of his social relationships, the evidence of record does not appear to indicate that the Veteran’s condition forced him to retire or to forgo working during the appeal period. In fact, during the appeal period, the Veteran appears to have reconciled the relationship with his wife, to have become more active in daily life, and to be seeking volunteer opportunities as a way to fill his time during retirement. Under these circumstances, the Board finds that the evidence of record preponderates against the conclusion that the Veteran’s PTSD has rendered him unemployable. 38 C.F.R. § 4.16. In reaching this conclusion, the Board has considered the reasonable doubt doctrine, but the evidence preponderates against the Veteran’s claim. Ortiz, 274 F.3d 1361. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steven H. Johnston, Associate Counsel