Citation Nr: 18143548 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-36 788 DATE: October 23, 2018 ORDER An effective date prior to December 12, 2011, for the assignment of a 100 percent rating for posttraumatic stress disorder (PTSD) with alcohol abuse is denied. FINDINGS OF FACT 1. A final August 2010 rating decision denied a rating in excess of 50 percent for the Veteran’s service-connected psychiatric disability, currently characterized as PTSD with alcohol abuse. 2. Following the issuance of the August 2010 rating decision, the Veteran’s claim for an increased rating for his psychiatric disability was first received on December 12, 2011. 3. It is not factually ascertainable that the Veteran’s PTSD with alcohol abuse increased in severity so as to warrant a 100 percent rating within the year prior to the receipt of the December 12, 2011, claim. CONCLUSION OF LAW The criteria for an effective date prior to December 12, 2011, for the assignment of a 100 percent rating for PTSD with alcohol abuse have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. § 3.400, 4.3, 4.7, 4.126, 4.130, Diagnostic Codes (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1978 to August 1978, and April 1983 to September 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Veteran participated in an informal conference with a Decision Review Officer. A report of such conference is of record. Additionally, the Veteran was scheduled for a September 2017 Board hearing in accordance with his request. However, the Veteran was deemed a no-show for the hearing and to date the Veteran has not requested that the hearing be rescheduled. As such, the Veteran’s hearing request is withdrawn. 38 C.F.R. § 20.704(d). Entitlement to an effective date prior to December 12, 2011, for the assignment of a 100 percent rating for PTSD with alcohol abuse. The Veteran is currently in receipt of a 100 percent rating for his service-connected PTSD with alcohol abuse, effective December 12, 2011. He contends that an earlier effective date for the grant of the 100 percent rating is warranted. The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, such specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). The United States Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one the next disability level” provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Id. at 521. As noted previously, the Veteran contends that an effective date prior to December 12, 2011, for the assignment of a 100 percent rating for PTSD with alcohol abuse is warranted. In this regard, he specifically alleges that, as the March 2013 rating decision that awarded such rating noted his claim was received on May 19, 2011, the assignment of such effective date is warranted. By way of background, the Veteran filed his original claim for service connection for a psychiatric disorder on May 13, 2008. In a January 2009 rating decision, service connection for such disability was granted with an initial 30 percent rating, effective May 13, 2008. Thereafter, a July 2009 rating decision awarded a 50 percent rating such disability, effective April 30, 2009, the date VA received the Veteran’s claim for an increased rating. Subsequently, the Veteran filed another claim for an increased rating that was received by VA on May 14, 2010. In an August 2010 rating decision, a rating in excess of 50 percent for the Veteran’s service-connected psychiatric disability was denied. The Veteran was advised of such decision and his appellate rights in a letter later that month; however, he did not enter a notice of disagreement. Additionally, no new and material evidence referable to the Veteran’s psychiatric disability was physically or constructively added to the record within a year of the issuance of such decision and no relevant service department records were subsequently received. Therefore, the August 2010 rating decision is final. 38 U.S.C. § 7105(c) (2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2017)]. Following the issuance of the August 2010 rating decision, the Veteran’s claim for an increased rating for PTSD with alcohol abuse was first received on December 12, 2011. In this regard, the May 19, 2011, claim date referenced by the RO and the Veteran pertains to a claim of entitlement to recognition of his son as a helpless child for VA purposes. VA regulations provide that, prior to March 24, 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. However, such informal claim must identify the benefit sought. Id. In the instant case, a review of the May 2011 communication reveals only a desire to file for compensation for the Veteran’s son. It does not include any mention of the Veteran’s psychiatric disability or reflect an intent to seek an increased rating for such disability. Therefore, it may not be considered an informal claim for an increased rating for the Veteran’s psychiatric disability. In contrast, on December 12, 2011, VA received the Veteran’s Supplemental Claim for Compensation (VA Form 21-526b) reflecting his intent to file a claim for an increased rating for his psychiatric disability. Moreover, upon a review of the VA treatment records dated between the issuance of the final August 2010 rating decision and the receipt of his December 2011 claim, the Board finds that such do not constitute an informal claim pursuant to 38 C.F.R.§ 3.157(b) as they do not reflect that the Veteran’s service-connected psychiatric disability had worsened since the last time it was evaluated, a fact that will be further discussed herein. Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Therefore, the remaining inquiry is whether there was a factually ascertainable increase in the severity of the Veteran’s PTSD with alcohol abuse within the year prior to the receipt of the December 12, 2011, claim, so as to warrant a 100 percent rating. Prior to December 12, 2011, the Veteran’s psychiatric disability was evaluated as 50 percent disabling pursuant to DC 9433, which, like DC 9411, provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. In this regard, 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; 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. Id. A 100 percent evaluation is assigned where 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). VA treatment records dated during the year prior to the date of VA’s receipt of the Veteran’s claim for an increase on December 12, 2011, show he sought treatment for his psychiatric disability; however, such fail to reflect that such disability had worsened, to include to the point where such resulted in total social and occupational impairment. In this regard, a February 28, 2011, VA treatment note indicated that the Veteran had been feeling well since his previous visit in January 2010. He stated that he experienced only occasional panic attacks, and denied alcohol abuse and depression. The Veteran further reported that he planned on going to Afghanistan to work as a contractor. Additionally, a June 28, 2011, VA treatment note indicates that the Veteran had been experiencing panic attacks since he stopped using his medication, was having difficulty at work due to irritability, and was having difficulty sleeping with frequent nightmares; however, he denied suicidal and homicidal ideation. Furthermore, a review of entirety of the evidence of record, to include VA treatment records dated since December 12, 2011 and a January 2013 VA examination, likewise fail to reflect symptomatology more nearly approximating total social and occupational impairment in the year prior to the receipt of the December 12, 2011, claim. In fact, the record reflects that the Veteran worked full-time through November 2011 and the January 2013 VA examiner found that his psychiatric symptomatology resulted in social and occupational impairment with deficiencies in most areas, but not total social and occupational impairment. After engaging in a holistic analysis assessing the nature, severity, frequency, and duration of the signs and symptoms of the Veteran’s psychiatric disability, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples, and their impact on his social and occupational functioning, the Board finds that the preponderance of the evidence is against a finding that it was factually ascertainable that the Veteran’s PTSD with alcohol abuse resulted in manifestations that more nearly approximate a rating of 100 percent rating in the year prior to the receipt of the December 12, 2011, claim. See Vazquez-Claudio, supra; Mauerhan, supra; Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). In this regard, the evidence of record does not show that the Veteran experienced 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, or symptoms of a similar severity, within the year prior to December 12, 2011. In this regard, the Veteran denied experiencing suicidal ideation, depression, and anxiety, and, while he reported irritability, the treatment reports of record do not indicate he was in persistent danger of hurting self or others. Furthermore, while the Veteran experienced panic attacks during the period on appeal, the evidence does not show that these symptoms resulted in gross impairment in thought processes or communication. Furthermore, the frequency, severity, and duration of psychiatric symptoms, and resulting impact on his social and occupational functioning were wholly encompassed by the then-assigned 50 percent rating. The Board has considered the statements provided by the Veteran regarding his psychiatric symptomatology. However, the Board finds that the medical records documenting the resulting impact on his social and occupational functioning to be of greater probative value when evaluating the severity of the disability. While the Veteran is competent to report the observable symptomatology of his psychiatric disability, his treatment providers and VA examiner, given their years of training and experience, are significantly better equipped to determine the level of impairment caused by such symptoms. Therefore, based on the foregoing, the Board finds that the criteria for an effective date prior to December 12, 2011, for the award of a 100 percent rating for PTSD with alcohol abuse have not been met. Consequently, there is no doubt to be resolved and the Veteran’s appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L. Brooks, Associate Counsel