Citation Nr: 18144688 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 12-13 118 DATE: October 25, 2018 ORDER From March 1, 2011, restoration of a 40 percent rating for lower back disability is granted. Entitlement to a rating higher than 40 percent for lower back disability is denied. From August 9, 2011, entitlement to a 70 percent rating for acquired psychiatric disability is granted. A timely notice of disagreement (NOD) was not received in response to a December 2010 rating decision with respect to the denial of service connection for posttraumatic stress disorder (PTSD), and the assignment of an initial 30 percent rating for acquired psychiatric disability. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Since March 2004, the Veteran has been service connected for lower back disability. 2. The lower back disability was rated as 40 percent disabling from April 16, 2008. 3. An April 2010 rating decision and notification letter proposed to reduce the rating for lower back disability from 40 to 20 percent. 4. The December 2010 rating decision on appeal reduced to 20 percent the disability rating for lower back disability, effective March 1, 2011. 5. In July 2011, the Veteran filed a timely NOD against the reduction in rating for lower back disability, and against the rating assigned for back disability. 6. The Veteran filed a May 2012 substantive appeal in response to an April 2012 Statement of the Case (SOC) affirming the reduction in rating from 40 to 20 percent for lower back disability, and affirming the assigned rating of 20 percent for the disability. 7. The decision to reduce the rating for lower back disability, from 40 to 20 percent effective March 1, 2011, did not comply with relevant law and regulations. 8. Low back disability has not involved ankylosis or incapacitating episodes. 9. Since August 9, 2011, acquired psychiatric disability has been productive of occupational and social impairment with deficiencies in most areas of life. 10. The Veteran did not file a timely NOD against the December 2010 rating decision with regard to the initial rating assigned for acquired psychiatric disability, and with regard to the denial of service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for restoration of a 40 percent rating for lower back disability from March 1, 2011 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.105(e), 4.71a Diagnostic Codes 5235-43 (2018). 2. The criteria for a rating higher than 40 percent for lower back disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (2018). 3. The criteria for a 70 percent rating for acquired psychiatric disability have been met since August 9, 2011. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.130 (2018). 4. A timely NOD was not filed against the December 2010 rating decision with regard to an initial rating assigned for acquired psychiatric disability and with regard to a service connection claim for PTSD. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to April 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript of the hearing is included in the record and has been reviewed. 1. From April 16, 2008, which is the effective date for the reduction in rating from 40 to 20 percent for lower back disability, restoration of a 40 percent rating is granted. Since March 2004, the Veteran has been service connected for lower back disability. In September 2008, the RO awarded a 40 percent rating for the disorder, effective April 16, 2008. In April 2010, the RO revisited the rating and proposed that it be reduced to 20 percent. In December 2010, the RO effected the reduction from March 1, 2011. The Veteran then appealed the reduction in rating to the Board. When reduction of a rating assigned to a service-connected disability is considered warranted, a rating proposing such reduction will be prepared setting forth all material facts and reasons. The claimant will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that the rating should be maintained. 38 C.F.R. § 3.105(e). VA’s General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the amount of compensation payable. VAOPGCPREC 71-91; VAOPGCPREC 29- 97. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making that determination, certain general regulatory requirements must be met. Brown v. Brown, 4 Vet. App. 413 (1993) (noting that the general regulations governing the rating of disabilities apply to a rating reduction case). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Brown, 4 Vet. App. at 420-421. 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 granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this matter, the April 2010 proposal and December 2010 decision followed requisite notification procedure in reducing the evaluation for back disability. This was necessary because – as noted in the December 2010 rating decision code sheet – the reduced rating for back disability resulted in a reduction in the amount of compensation payable to the Veteran. The combined disability rating declined from 60 to 40 percent effective March 1, 2011. Nevertheless, the reduction in rating was not justified based on the evidence of record. Thoracolumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. In relevant part, back disability was rated 40 percent disabling between April 16, 2008 and March 1, 2011 based on evidence indicating forward flexion of the thoracolumbar spine of 30 degrees or less. To affirm the RO’s rating reduction, it must be determined that an improvement in lower back disability had occurred, which then improved the ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Faust v. West, 13 Vet. App. 342 (2000). With respect to this aspect of the analysis, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). The evidence available to the RO at the time of the December 2010 rating decision consisted of VA and private treatment records, medical evidence from the Social Security Administration (SSA), VA compensation examination reports, and lay statements from the Veteran. This evidence is in a state of relative equipoise regarding whether the Veteran experienced an actual improvement in back disability that would justify the reduction in rating effective March 1, 2011. Specifically, the evidence dated around the time of the reduction does not indicate a consistent ability to forward flex beyond 30 degrees without disabling pain. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. It is clear in the record that certain evidence indicated an improvement in the lower back disability. The RO relied on medical findings noted in an April 2010 VA examination report, which indicated 0 to 60 degrees forward flexion. However, the same report also noted that the Veteran experienced pain throughout the motion. The report noted the Veteran’s complaints of chronic back pain and his use of multiple pain medications to include oxycodone and morphine. The report noted that the Veteran used a back brace and a cane, and needed assistance with putting on his socks and shoes following the examination. And, despite the evidence of painful motion, the report did not comment on the extent to which pain caused functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The Veteran also underwent VA examination of his back in October 2010. This examiner noted forward flexion beyond 30 degrees as well, to 40-50 degrees. But the report also notes that, during forward flexion, the Veteran experienced pain throughout, and held on to his cane while bending forward out of concern about falling. As with the April 2010 report, this report also noted the Veteran’s complaints of chronic pain and increased use of pain medications to treat pain (which is documented in VA treatment records). The report detailed June 2010 MRI of the lumbar spine, which confirmed multilevel bulging, narrowing, and degenerative changes in the spine. And the examiner stated that pain due to back disability would preclude the Veteran from manual labor – such as plumbing, which was his profession – and would limit his ability to work in a sedentary job to 15-20 hours per week. Later evidence further undermined the decision to reduce the rating. VA treatment records dated throughout 2010 and 2011 note complaints of chronic back pain as well as oxycodone and morphine use for pain relief. In a June 2010 hearing at the RO, the Veteran described that his back disability had actually worsened rather than improved since April 2008 – when the 40 percent rating first became effective. Specifically, the Veteran reported that he had undergone an increase in pain medication recently, doubling his use of oxycodone and morphine to treat back pain. He indicated that he needed help in cleaning his apartment, experienced days during which the pain prevents him from leaving bed, spends “90 percent” of his day in horizontal position, and begins each day experiencing severe pain until relief from pain medication. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence may be probative on matters involving observable symptomatology such as pain and limited motion). Furthermore, evidence from SSA shows that the Veteran received SSA disability benefits based largely on back disability. This is not binding on VA. Nonetheless, it is evidence undermining the notion that his disorder had improved. And the record also contains private physical therapy treatment records dated in 2012, which indicate forward flexion of 30 degrees or less. In sum, it is not clear that the Veteran experienced in 2010 and 2011 an improvement in lower back disability leading to improved ability to function under the ordinary conditions of life and work. See 38 C.F.R. §§ 4.1, 4.2, 4.13. What further complicates this matter is the issue of what effect pain medication had on back disability in the 2010 to 2011 period. It may be the case that the increase in oxycodone and morphine alleviated the pain, and enabled the Veteran an apparent increase in forward flexion beyond 30 degrees. Such an apparent improvement should not affect the assigned rating, however. Entitlement to a higher rating may not be denied “on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria.” Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As the rating criteria for back disability under 38 C.F.R. § 4.71a do not contemplate the effects of medication in alleviating symptoms, VA is precluded from considering the relief afforded by the Veteran’s medication in evaluating the severity of the disability. Pursuant to Jones, the severity of the back pain must be determined, absent the ameliorative effect of the medication. Thus, the preponderance of the evidence does not demonstrate that the RO’s reduction in rating was proper. Restoration of the 40 percent rating for back disability effective March 1, 2011 is therefore warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a rating higher than 40 percent for lower back disability is denied. In appealing the December 2010 rating decision to the Board, the Veteran also perfected an appeal regarding a claim for a rating higher than 40 percent for back disability. In the decision below, the Board will consider whether a higher disability rating has been warranted during the appeal period. See 38 C.F.R. § 3.400 (2017). Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent (“flare-ups”) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018). Thoracolumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. When rating under the former formula, VA is directed to evaluate orthopedic disability separately with any associated objective neurologic abnormalities under an appropriate diagnostic code, and then combine the separate ratings under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43, Note (1). A rating under the latter formula is warranted where incapacitating episodes are present due to intervertebral disc syndrome (IVDS). An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). VA should then select whichever formula results in the higher evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, disability ratings of 10, 20, 40, 50, and 100 percent are authorized for thoracolumbar disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. As the back disability has been rated as 40 percent disabling during the appeal period, the Board will limit its discussion to criteria providing for a higher rating, i.e., 50 and 100 percent. Ratings of 50 and 100 percent are warranted for disorders manifested by ankylosis. Ankylosis is defined as “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint[.]” Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the sole rating higher than 40 percent is a 60 percent rating, which is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. The evidence in this matter consists of VA and private treatment records, medical evidence from SSA, multiple VA compensation examination reports, and lay statements from the Veteran. This evidence clearly demonstrates that the Veteran does not have ankylosis in his lower spine, and that he has not experienced incapacitating episodes as the result of back disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. The Board has reviewed the voluminous claims file and has not found evidence of either. The Board notes the Veteran’s lay assertions that back pain caused incapacitating episodes. However, his assertions are not corroborated by medical findings noting the diagnosis of IVDS, or medical findings indicating that the Veteran had been prescribed bed rest for IVDS. Indeed, the most recent VA examination report addressing back disability, dated in August 2017, specifically states that the Veteran does not have IVDS, does not experience incapacitating episodes, and does not have ankylosis. Based on the foregoing, the Board finds the preponderance of the evidence against the claim for a rating in excess of 40 percent for back disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. See Alemany and Gilbert, both supra. 3. Entitlement to a 70 percent rating for acquired psychiatric disability is granted. In a December 2010 rating decision, the RO granted service connection for a mood disorder. The RO rated the disorder 30 percent disabling effective April 30, 2010. As will be detailed below in section #4 of this decision, the Veteran did not appeal the assigned initial rating and effective date. In correspondence received on August 9, 2012, the Veteran indicated an interest in seeking an increased rating for his psychiatric disorder. In response, in a June 2013 rating decision, the RO assigned a 50 percent rating effective the date of claim on August 9, 2012. The Veteran appealed the decision to the Board in March 2016. During the pendency of the appeal, in a November 2017 rating decision, the RO increased the disability rating to 70 percent, effective August 28, 2017. In the decision below, the Board will consider whether a higher disability rating has been warranted at any time from August 9, 2011, one year prior to the date of claim. See 38 C.F.R. § 3.400(o)(2). The Veteran’s psychiatric disability has been rated under Diagnostic Code (DC) 9435 of 38 C.F.R. § 4.130. This DC authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. As the disorder has been rated as at least 30 percent disabling during the appeal period, the Board’s inquiry will focus on whether a 50, 70, or 100 percent rating has been warranted at any time from August 9, 2011. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Diagnostic Code 9435 and other DCs addressing psychiatric disabilities are detailed under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. A 50 percent rating is warranted for 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 in establishing effective work and social relationships. A 70 percent disability rating is warranted when 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted for a mental disorder 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 or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The evidence dated since August 2011 consists of the Veteran’s lay assertions, lay statements received from his mother and friend, VA treatment records, and VA compensation examination reports dated in May 2013 and August 2017. This evidence indicates that psychiatric disability has caused deficiencies in most areas of the Veteran’s life since August 2011. See 38 C.F.R. § 4.130. Certain evidence indicates milder impairment. The May 2013 VA report specifically states at the outset that psychiatric disability caused “[o]ccupational and social impairment with reduced reliability and productivity.” This matches the criteria for a 50 percent rating. Further, the examiner noted the Veteran as cooperative, with normal speech and a normal thought process, with appropriate grooming and hygiene, with a euthymic affect at times, and without hallucinations or delusions. The examiner noted the use of psychiatric medication with positive results, and indicated that the Veteran had never “engaged in individual therapy” and had never been “a patient in an inpatient psychiatric facility.” However, the report also notes more severe symptoms, such as “some thoughts of suicide” without intent or plan, and diminished cognitive functioning. The examiner noted such symptoms as depression, anxiety, chronic sleep impairment, disturbance of motivation and mood, sadness, low motivation, social isolation, panic attacks limiting the Veteran’s ability to go shopping, and noted that the Veteran had not worked since 2001. The examiner also noted that the problems with cognitive functioning “would likely impact his occupational functioning if he were to work.” In the May 2013 report, the examiner diagnosed the Veteran with two disorders – a mood disorder and a cognitive disorder. The examiner indicated that the symptoms for each “overlap significantly” and could not be differentiated. See Mittleider, supra. The examiner then closed the report addressing occupational impairment, stating that because of the Veteran “struggles with being around others, with mood, and with cognitive functioning” he would be best served “working part time, largely by himself, and in a position where his job tasks relied on repetition so that once he learned the task, he would not have to focus hard on his work.” The August 2017 report also notes severe psychiatric impairment. At the outset of the report, the examiner found that psychiatric disability caused “[o]ccupational and social impairment with deficiencies in most areas” of his life. This matches the criteria for a 70 percent rating. Based on the examination, the examiner noted the Veteran with appropriate grooming and hygiene, as fully oriented and cooperative with normal speech, intelligence, and motor activity, with a linear thought process, “mildly flattened and intermittently tearful” affect, no evidence of psychosis, and with unimpaired insight and judgment. But the examiner also noted chronic sleep impairment, impaired short term memory, panic attacks occurring several times per month, frequent significant periods of anhedonia, low energy, depressed mood, crying spells, loss of appetite, lack of motivation, intermittent passive suicidal ideation (without intent or plan), depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The August 2017 examiner diagnosed PTSD, major depressive disorder with anxious distress, and a neurocognitive disorder. The examiner indicated that he could differentiate the symptoms between the three disorders. But then later in the report, the examiner indicated that any differentiation would be an approximation. In any event, the examiner found “the majority of impairment relates to Major Depressive Disorder, with a lesser portion relating to PTSD and Unspecified Neurocognitive Disorder. Major Depressive Disorder by itself is causing, at least, deficiencies in most areas of functioning.” In closing the report, the examiner commented on the issue of employability. He stated that the Veteran was likely to be anxious, agitated, panicky, dysphoric, and easily distracted in a work environment. He is likely to need frequent breaks to manage the irritability, dysphoria, and other Major Depressive Disorder related symptoms that are likely to occur in a work-like setting. In a fast paced or high stimulus environment these problems are likely to manifest with greater frequency and intensity. His depression symptoms are likely to impact his ability to routinely engage in basic tasks effectively. The [V]eteran is likely to have significant challenges in a role that would require customer interaction or multitasking. It is likely that he will experience frequent problems and require frequent time away from work due to his service-connected behavioral health symptoms. It should be noted that the above opinion only takes into consideration the veteran's Major Depressive Disorder and cognitive symptoms. The examiner found that, from a psychiatric standpoint, the Veteran did not have the “cognitive, emotional, and behavioral capacity to engage in even simple tasks in a loosely supervised environment, as his behavioral health symptoms are likely to interfere with performance of these tasks more than on an intermittent basis.” The examiner also noted that his findings were consistent with findings noted by a treating physician. Indeed, VA treatment records note findings by treating personnel who indicate regular mental health medication management and treatment since the August 2011 and earlier. The records indicate findings of mood disturbance, depression, suicidal ideations, irrational fears, difficulty adapting to stressful situations, guilt/remorse, panic attacks, and “extreme anxiety[.]” The records indicate “marked limitations in multiple functional domains” and that the Veteran was not employable as a result. Inasmuch as these opinions are provided by VA examiners who reviewed the claims file and examined the Veteran, and by treating medical specialists presumably most familiar with the Veteran's psychiatric disability, they are of probative value. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). Further, they are persuasive and, at a minimum, put the evidence in a state of relative equipoise regarding the severity of psychiatric disability during the appeal period. See Alemany and Gilbert, both supra. Based on the foregoing, the Board cannot find that a preponderance of the evidence is against application of a 70 percent rating during the appeal period. Rather, the evidence is at least in equipoise on this issue. The lay and medical evidence is in equipoise regarding whether psychiatric illness has caused severely disabling symptoms during this period, whether it has caused occupational and social impairment with deficiencies in most areas of his life. See 38 C.F.R. § 4.130, DC 9411. Further, the 70 percent rating should apply during the entire appeal period – i.e., from one year prior to the August 9, 2012 increased rating claim. See 38 C.F.R. § 3.400 (o)(2). The Board notes that the record contains minimal relevant evidence dated between August 2011 and August 2012. However, the higher rating is appropriate during this period because later-dated evidence indicated worsening symptoms from 2011. For example, in a statement received in June 2017 from a treating VA psychiatrist, severe psychiatric symptomatology is noted which was “evident since first seen by me in 2011.” Further, in assessing the appropriate effective date for the increase in rating, the Board has considered 38 C.F.R. § 3.344 (2018). This provision guides VA to produce the greatest degree of stability of disability evaluations based on the entire record of examination and the medical-industrial history. Based on such guidance, the Board finds it unlikely that the severity noted in the VA reports and treatment records had its onset in 2013. Rather, it is as likely as not that the severity of the psychiatric disability preexisted the August 2012 increased rating claim. A 100 percent rating has been unwarranted during the appeal period, however. The evidence does not support a finding that the Veteran’s psychiatric problems have caused total occupational and social impairment. As summarized above, the evidence dated since August 2011 indicates that the Veteran’s impairment had not been total. This is also demonstrated by the May 2013 and August 2017 VA reports, and the treatment records from treating VA personnel (which formed the basis for the increase in rating to 70 percent). Notwithstanding the severe impairment, this evidence has generally shown the Veteran to be fully oriented with the capacity for insight without evidence of a thought disorder, psychosis, delusions, or hallucinations. In short, despite the symptoms, he has not exhibited the type of emotional and cognitive impairment reserved for a total rating. He has been coherent and in self-control. See 38 C.F.R. § 4.130, DC 9411. In sum, a preponderance of the evidence is not against the assignment of a 70 percent disability rating throughout the appeal period – i.e., from August 9, 2011. However, a preponderance of the evidence has been against the assignment of a 100 percent rating at any time during the appeal period. See Alemany and Gilbert, both supra. 4. A timely NOD was not received in response to the December 2010 rating decision with respect to the denial of service connection for PTSD, and the assignment of an initial 30 percent rating for acquired psychiatric disability. The Veteran contests an August 2012 determination by the RO that a NOD had not been filed in a timely fashion. The RO found that an August 2012 communication from the Veteran’s representative was not a timely NOD with respect to the December 2010 rating decision’s denial of service connection for PTSD, and its initial assigned rating for acquired psychiatric disability. The Veteran filed a September 2012 NOD against the timeliness determination. In response, the RO issued a July 2017 Statement of the Case (SOC) against which the Veteran filed a September 2017 substantive appeal. Under 38 C.F.R. § 3.104(a), a decision of the RO shall be binding as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104 (2012). Such a decision will become final in the absence of a timely NOD. 38 C.F.R. §§ 20.302, 20.1103 (2018). A NOD is timely if filed within one year of the date of mailing of notice to the claimant of the result of initial review or determination. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.302 (2018). A review of the record shows that notification of the December 2010 rating decision, along with notice of appellate rights, was provided to the Veteran on December 7, 2010 at his most recent address of record. There is no indication that the notification was returned as undeliverable by the United States Postal Service, or did not otherwise reach the Veteran. Indeed, it is clear that the Veteran received notification because he filed a timely NOD against the rating decision with regard to the rating issue for back disability addressed above. Therefore, it is presumed that the Veteran received the December 2010 rating decision and notification letter. Thus, the August 2012 statement from the representative is not a timely NOD with regard to the denial of service connection for PTSD, and the assignment of an initial 30 percent rating for acquired psychiatric disability, in the December 2010 rating decision. In short, VA did not receive the expression of disagreement with those aspects of the rating decision within one year of the December 7, 2010 notification. The decision with respect to those issues became final. The Board recognizes the representative’s argument that his August 2012 letter is a timely NOD responding to an April 2012 notification letter sent to the Veteran. The April 2012 letter from the RO is titled a “corrected letter” with regard to the December 2010 rating decision and notification. It is not clear what the RO’s intent was with the letter. It appears the letter pertains to the issue then on appeal (and addressed above) regarding the rating assigned for back disability, and whether the reduction in rating was proper. In any event, the “corrected letter” was not an adjudication of the issues relevant to this analysis – the service connection claim for PTSD, or the initial rating of acquired psychiatric disability. With regard to these issues, the “corrected letter” merely summarized the December 2010 decision which, by April 2012, had become final. As such, the August 2012 correspondence from the representative can be considered neither a timely NOD against the December 2010 rating decision nor a new NOD against the April 2012 correspondence. Accordingly, as the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107 (b) regarding reasonable doubt are not applicable. The claim must be denied. REASONS FOR REMAND The issue of entitlement to a TDIU is remanded. In a November 2017 Supplemental SOC, the RO stated that a decision regarding the claim for a TDIU had been deferred. The record does not indicate a decision on the deferred issue. As such, a remand is warranted for adjudication of the claim. The matter is REMANDED for the following action: (Continued on the next page)   Readjudicate the TDIU claim. If the benefit sought remains denied, provide the Veteran a SSOC and return the case to the Board if in order. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel