Citation Nr: 18146896 Decision Date: 11/02/18 Archive Date: 11/01/18 DOCKET NO. 10-23 571 DATE: November 2, 2018 ORDER The application to reopen the claim for service connection for a gastrointestinal disability is granted. A 70 percent evaluation for posttraumatic stress disorder is granted. Entitlement to an effective date prior to June 10, 2008 for posttraumatic stress disorder is denied. REMANDED Entitlement to service connection for a gastrointestinal disability is remanded. FINDINGS OF FACT 1. In an unappealed July 1997 rating decision, the RO denied service connection for aerophagia. 2. The evidence received since the July 2013 rating decision, by itself or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a gastrointestinal disability. 3. Prior to August 26, 2010 posttraumatic stress disorder was manifested by anxiety, irritability, hyperarousal, hypervigilance, isolation, and chronic sleep impairment, all resulting in occupational and social impairment with deficiencies in most areas. 4. The Veteran was denied service connection for posttraumatic stress disorder in a 1997 rating decision. That decision was final. CONCLUSIONS OF LAW 1. The July 1997 rating decision denying service connection for aerophagia is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Since the July 1997 rating decision, new and material evidence has been received with respect to the Veteran’s claim of entitlement to service connection for a gastrointestinal disability; therefore the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an initial evaluation of 70 percent, but no higher, for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to an effective date prior to June 10, 2008 for the grant of service connection for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1980 to March 1983. A videoconference hearing in this matter was held in May 2018 before the undersigned veterans law judge. The transcript is of record. 1. New and material evidence In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510,513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that once new and material evidence has been presented as to an unestablished fact from a previously denied claim for service connection, the claimant will be entitled to the full benefits of the Secretary’s duty to assist, including a medical nexus examination, if one is warranted; it does not require new and material evidence as to each previously unproven element of a claim. In July 1997, the RO issued a rating decision denying service connection for aerophagia due to a lack of evidence of current disability. No notice of disagreement or new and material evidence was filed within one year. The Veteran filed a claim in June 2008. Medical records show that in July 2009 the Veteran was seen for gas pains and prescribed simethicone. As the prior denial was due to a lack current disability, medical evidence showing treatment for gas pains constitutes new and material evidence. Therefore, the claim is reopened. 2. Evaluation of posttraumatic stress disorder 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. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. If there is a question as to which evaluation to apply to the Veteran’s disability, 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. The Veteran is rated under DC 9411, which is rated according to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, 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 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 and maintaining effective work and social relationships.” Id. A 70 percent 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); inability to establish and maintain effective relationships.” Id. 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 or place; memory loss for names of close relatives, own occupation, or name.” Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The Veteran’s rating for PTSD was increased to 100 percent effective August 26, 2010. However, the rating for the period from June 10, 2008 to August 26, 2010 remains on appeal. The Veteran reported extreme anxiety, anger, stress hypervigilance, depression, and confusion and fear anywhere there are a lot of people (bus, supermarkets, malls, special events). A friend of the Veteran’s, with whom the Veteran had attempted to have a romantic relationship, submitted a statement reporting that the Veteran was easily agitated and prone to violent outbursts. The friend stated that she remained the Veteran’s friend, but was unable to pursue a romantic relationship any further due to fears regarding the Veteran’s behavior. Treatment notes from June 10, 2008 to August 26, 2010 show that the Veteran reported constant struggles with anger, hypervigilance, avoidance, nightmares, and hyperarousal. He stated on several occasions that he mostly stayed home due to his irritability while out performing daily tasks. He stated that he struggled with trusting anyone and had difficulty going to the hospital for treatment because it was tough for him to ride the bus or be around people. A treatment noted from November 2009 stated that the Veteran reported being depressed and upset because his mother wanted to visit him for Thanksgiving. The Veteran received a VA examination in June 2009. The examiner noted symptoms of difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. The Veteran’s general appearance was clean. He displayed an irritable attitude and depressed mood, but he was oriented, his thought processes and content were unremarkable, and his insight and judgment were appropriate. There was no evidence of suicidal or homicidal ideation or of delusions or hallucinations. The Board finds that the Veteran’s symptoms during this period warrant a rating of 70 percent. The Veteran reported constant hypervigilance and anxiety. He lived alone and avoided leaving home when possible. Although he tried to pursue a romantic relationship, he was unable due to his outbursts. He even reported anxiety over the thought of his mother visiting for a holiday, suggesting difficulty in establishing and maintaining social relationships. The Board finds that these symptoms result in occupational and social impairment with deficiencies in most areas. To warrant a 100 percent rating, the Veteran’s symptoms would need to be severe enough to cause total occupational and social impairment. That has not been shown here. The Veteran did not have symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, did not display grossly inappropriate behavior or disorientation to time or place, and was capable of performing activities of daily living. He was able to attend and participate in group therapy and create and maintain a friendship during this period. The Veteran’s symptoms did not rise to the level of total occupational and social impairment. Therefore, a rating in excess of 70 percent for the period prior to August 26, 2010 is not warranted. 3. Entitlement to an effective date prior to June 10, 2008 for PTSD The Veteran has challenged the effective date of the grant of service connection for posttraumatic stress disorder (PTSD), which is June 10, 2008. “Unless specifically provided otherwise in this chapter [38 U.S.C. §§ 5100 et seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § 5110(b)(1). Sections 3.155 and 3.157 have been amended or eliminated. However, the regulations were in force at the time of the prior decisions. “Claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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). Further, under 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits. See Lalonde v. West, 12 Vet. App. 377, 380-81 (1999). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The Veteran filed a claim for service connection for PTSD in March 1997. That claim was denied in an October 1997 rating decision. No notice of disagreement or new and material evidence was submitted within one year. That decision is final. On June 10, 2008, the Veteran’s representative submitted a statement from the Veteran requesting service connection for PTSD. Service connection was granted in a July 2009 rating decision with an effective date of June 10, 2008. There are two elements that must be addressed. The first is whether the appellant may receive an effective date based upon the initial claim rather than a claim to reopen. The second is whether VA may have missed a pending claim filed prior to June 10, 2008. The effective date is based upon law. Here, there was a prior final decision denying the benefit sought. The attempt to revisit that prior claim and decision is prohibited as that would vitiate the concept of finality. The proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, 38 U.S.C. § 5110(a). Rudd v. Nicholson, 20 Vet. App. 296 (2006). In regard to the second theory, there is a deferred rating note dated January 10, 2008, indicating that there may have been a claim prior to that date. However, the first communication from the Veteran following the October 1997 rating decision was submitted on June 10, 2008. Despite being dated January 10, 2008, the deferred rating note references items from the June 10, 2008 submission by the Veteran’s representative. It seems likely that the deferred rating was misdated. The evidence does not indicate that there was a formal or informal claim submitted between the prior final claim and the document received on June 10, 2008. Therefore, an earlier effective date is not warranted. Here, the proper effective date is the date of receipt of the application to reopen. REASONS FOR REMAND 1. Entitlement to service connection for a gastrointestinal disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a gastrointestinal disability because subsequent to the VA examination of record, medical records indicate that the Veteran received treatment for the claimed disability. The June 2009 VA examiner noted that there had been no treatment since service and that the Veteran had no current disability. However, in July 2009 the Veteran was seen at the Bay Pines VA Medical Center for gas pains and prescribed simethicone. Remand is necessary to determine if the Veteran has a current disability and whether any such disability is related to his service. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any gastrointestinal disability. In particular, is there medically recognized pathology. The examiner must opine whether it is at least as likely as not related to service, including his documented aerophagia. The examiner must also opine whether it is at least as likely as not proximately due to or aggravated by the Veteran’s service-connected PTSD. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel