Citation Nr: 18143514 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 16-04 649 DATE: October 19, 2018 ORDER Entitlement to an increased, 70 percent rating for service-connected posttraumatic stress disorder (PTSD), prior to March 3, 2015, is granted. Entitlement to a finding of total disability rating based on individual unemployability (TDIU) prior to June 12, 2012 is granted. REMANDED Entitlement to service connection for a back condition is remanded. FINDINGS OF FACT 1. A claim for increased rating of service-connected PTSD was received on May 25, 2011, as part of a claim for TDIU. 2. Throughout the appellate period, PTSD has been manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. Throughout the appellate period, the Veteran’s service-connected disabilities have rendered him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent rating for service-connected posttraumatic stress disorder (PTSD) prior to March 3, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to an effective date of May 25, 2011, but no earlier, for the grant of a TDIU have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the U.S. Marine Corps from October 1966 to October 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2012 and January 2016 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs. The claims are characterized as above to reflect that both arose out of, and have bene pending since, the filing of a May 25, 2011, claim for TDIU. This means that the appeal for evaluation of PTSD has been pending since that time; it is not an effective date appeal. Further the Veteran has expressed satisfaction with the assignment of a 70 percent rating, the level of compensation he requested, effective March 3, 2015, and so the current appeal concerns the period prior to that date. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) prior to March 3, 2015 The Veteran seeks a higher disability rating for his service-connected PTSD beginning May 25, 2011, the date of receipt of his claim for TDIU and, by inference, a claim for increased rating of PTSD. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran’s service-connected PTSD is rated under the general Rating Schedule for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Notably, the claim on appeal was originally certified to the Board in January 2018. As such, the nomenclature employed in this portion of VA’s Rating Schedule is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (“DSM-V”). 38 C.F.R. § 4.130. See 80 Fed. Reg. 14308 (Mar. 19, 2015). Under the Rating Schedule, a 50 percent evaluation is warranted where the evidence shows 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 and social relationships. A 70 percent evaluation is warranted where the evidence shows 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 an inability to establish and maintain effective relationships. 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 and place, memory loss for names of close relatives, own occupation, or own name. Symptoms listed in VA’s Rating Schedule for mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). After a review of the lay and medical evidence, the Board finds that the Veteran’s PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas such as work and family relations due to symptoms such as thought content involving asocial behavior, depression affecting his ability to function properly including his markedly diminished interest or participation in significant activities, and restricted range of affect, as well as difficulty adapting to stressful circumstances. The Veteran underwent VA examination in May 2010, where the examiner noted that the Veteran displayed a depressed mood, with congruent affect, though he was tearful during the interview. The Veteran’s thought content and processes were notably unremarkable and there was no evidence of delusions of hallucinations. The Veteran reported being very irritable, having panic attacks more than four times per week and having issues with concentration. The Veteran further reported that his depressed mood caused a significant decrease in his motivation to engage in social activities which was almost non-existent. On May 25, 2011, a claim for TDIU was received; the Veteran indicated his service-connected mental disorder was responsible, at least in part, for his unemployment. This was considered an allegation of worsening under VA policy at the time. The Veteran was examined again in November 2011 where the examiner noted that the Veteran had a positive and healthy relationship with his wife and his four adult children, but no one else, particularly his grand-children. The Veteran described increasing irritability, depressed mood, anxiety, and panic attacks multiple times per week. The Veteran’s impulse control was notably impaired and he displayed symptoms of continuous depressed mood, anxiety, chronic sleep impairment, hypervigilance, problems with attention and concentration, disturbance in motivation and mood, as well as difficulty adapting to stressful circumstances and maintaining effective relationships outside of the relationship with his wife. Pertinently, in the January 2016 rating decision the agency of original jurisdiction (AOJ) increased the Veteran’s PTSD to 70 percent disabling effective March 3, 2015, and subsequently, increased his previously characterized psychiatric disability for the relevant appeal period to 50 percent, effective November 8, 2011. The Board finds that the evidence of record does not warrant a staged rating, as the Veteran’s symptoms have been relatively consistent throughout the appeal period. Specifically, the Veteran’s consistent symptoms of excessive periods of irritability, panic attacks more than once per week, continuous depressed mood, and decreased motivation to engage in social activities have persisted throughout the entire period. Moreover, the Board notes that the previous VA examiner’s characterization of the degree of the disability is not entirely dispositive of the legal questions involved in determining the appropriate rating for PTSD. 38 C.F.R. § 3.100(a)(delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) (“Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity”). Thus, the Board finds that the Veteran’s PTSD should be assigned a consistent 70 percent rating throughout the appeal period, beginning May 25, 2011. Despite this, the higher 100 percent evaluation is not warranted at any point as the Veteran’s disability has not been manifest by the more severe symptoms like grossly impaired thought process or content, persistent delusions or disorientation, nor has he shown an inability to maintain personal hygiene despite evidence that his wife prods him to shower. Consequently, entitlement to a rating in excess of 50 percent for service-connected PTSD prior to March 3, 2015, is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. Entitlement to an earlier effective date prior to June 12, 2012, for the award of a total disability rating based on individual unemployability (TDIU) In a January 2016 Decision Review Officer (DRO) decision, the AOJ granted TDIU effective from March 3, 2015. The Veteran continued his appeal, and in November 2017, the DRO awarded TDIU from the earlier effective date of June 12, 2012, which corresponded to the date on which the veteran met the schedular eligibility requirements for TDIU under 38 C.F.R. § 4.16(a). The Veteran has continued to argue for an earlier effective date of May 25, 2011, his initial date of claim for TDIU. The current appeal arises from the decision on that claim. The effective date of a grant of a TDIU is generally determined in accordance with the effective date rules for increased ratings. See Hurd v. West, 13 Vet. App. 449 (2000). Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The date of claim is May 25, 2011, the date that the VA received his claim for a TDIU and VA Form 8940. There is no earlier communication that can be interpreted as an informal claim; the Board finds that this was the date of the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The date of entitlement is also May 25, 2011. The Veteran is in receipt of a 70 percent disability rating for PTSD alone, effective May 25, 2011, thus meeting the schedular criteria for a TDIU without even considering his other service-connected disabilities. The Veteran has not worked since 2008, when he was let go from his truck driving position when the company folded and his panic attacks and cardiac disability increased to a severity that he was no longer able to work in his previous capacity and was unable to obtain work in an alternative capacity due to his occupational capacities. There is no other possible conclusion but that the Veteran is correct and a May 25, 2011, effective date for TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for a back condition is remanded. A November 2011 VA examiner opined that there was no nexus between a single in-service incident of injury and current low back complaints. He reasoned there was a lack of diagnosis in service, and no evidence of chronicity of treatment since. However, he noted ongoing reports of pain in service, and current statements of long-standing pain. It appears the examiner rejected these competent lay statements because they often came in the context of psychiatric examinations. The Board finds the statements regarding recurrent back pain to be credible and competent regardless of the circumstances of their utterance, and this evidence must be considered in rendering an adequate medical opinion. Remand is required to obtain such. The matter is REMANDED for the following action: 1. Associate with the claims file any outstanding, updated VA treatment records. 2. Schedule the Veteran for a VA spine examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all currently diagnosed conditions of the low back, and should note all historical diagnoses. The examiner must comment on the presence of back pain, both objectively manifested and subjectively reported, and any resultant functional impacts. For all conditions diagnosed or functional impacts noted, the examiner must opine as to whether it is at least as likely as not that such is caused or aggravated by service. With respect to this determination, the documented injuries in 1965 as well as the competent and credible reports of recurrent back pain since must be considered. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel