Citation Nr: 18147384 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 16-40 691 DATE: November 6, 2018 ORDER Entitlement to an effective date earlier than August 26, 2013 for the 30 percent disability rating for an unspecified trauma and stressor related disorder with sleep impairment (claimed as posttraumatic stress disorder (PTSD)), referred to as an acquired psychiatric disorder, is denied. Entitlement to an initial staged disability rating in excess of 30 percent for the service-connected acquired psychiatric disorder, for the staged period from August 26, 2013 to February 28, 2017, is denied. Entitlement to an initial staged disability rating in excess of 50 percent for the service-connected acquired psychiatric disorder from February 28, 2017, is denied. FINDINGS OF FACT 1. The Veteran filed the original claim for service connection for the acquired psychiatric disorder on August 26, 2013, which was granted in a December 2014 rating decision and made effective from August 26, 2013. 2. No claim for service connection for the acquired psychiatric disorder was received prior to August 26, 2013. 3. For the staged rating period on appeal from August 26, 2012 to February 28, 2017, the service-connected acquired psychiatric disorder more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: anxiety, suspiciousness, and chronic sleep impairment. 4. For the staged rating period on appeal from February 28, 2017, the service-connected acquired psychiatric disorder more nearly approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as: impairment of short- and long-term memory (like retaining only highly learned material while forgetting to complete tasks), impaired judgment, hypervigilance, easily startled. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 26, 2013 for the acquired psychiatric disorder have not been met as a matter of law. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). 2. For the initial staged rating period on appeal from August 26, 2012 to February 28, 2017, the criteria for an initial staged disability rating in excess of 30 percent for the service-connected unspecified trauma and stressor related disorder with sleep impairment (claimed as posttraumatic stress disorder (PTSD)), have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. For the staged rating period on appeal from February 28, 2017, the criteria for an initial disability rating in excess of 50 percent for the service-connected unspecified trauma and stressor related disorder with sleep impairment (claimed as posttraumatic stress disorder (PTSD)), have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to February 1972. This matter is on appeal from the July 2014 rating decision issued by the Regional Office (RO) in Baltimore, Maryland. Duties to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran’s service and the disability; (4) degree of disability; and (5) effective date of the disability. Here, VCAA notice is not required for the earlier effective date issue because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Specifically, as will be discussed below, the Veteran has received the earliest possible effective date at law, and no earlier effective date can be assigned. Regarding the duty to assist in this case, the Veteran received VA examinations in June 2014 and July 2017. The VA examination reports are of record. The VA examination reports reflect that the VA examiner reviewed the record, conducted an in-person examination, and rendered the requested opinions and rationale. The Veteran asserts that the June 2014 examination was inadequate because it did not accurately reflect the true severity of his symptoms. The Veteran did not proffer any additional evidence to support this assertion. Absent additional evidence, the Board finds that the Veteran’s inadequacy argument is insufficient to overcome the presumption that the June 2014 VA examination was adequately conducted. See Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examinations); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (explicitly extending the presumption of competence to VA examiners). Clear evidence has not been presented to rebut the presumption of regularity in the conduct of the November 2010 VA examination in this case. Miley, 366 F.3d at 1347. All relevant documentation, including VA treatment records, has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the issues on appeal. 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). Any duties imposed on VA, including the duties to assist and to provide notification, have been met as set forth above. 1. Earlier Effective Date for the Acquired Psychiatric Disorder An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be 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. A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. See 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). In the instant claim, the Veteran contends generally that the RO should have assigned an earlier effective date than August 26, 2013 for the grant of service connection for the acquired psychiatric disorder. See January 2015 Notice of Disagreement, August 2016 Substantive Appeal, July 2018 Appellant Brief. The Veteran submitted an original claim for service connection for the acquired psychiatric disorder on August 26, 2013. The December 2014 rating decision granted service connection for the acquired psychiatric disorder. While the Veteran contends generally that an earlier effective date is warranted, the evidence of record establishes no date of claim that is earlier than the date. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. In this case, the Veteran separated from active service in August 1970, did not file a claim for service connection within one year of service separation, and first filed an original claim for service connection for the acquired psychiatric disorder on August 26, 2013. On these undisputed facts, because the earliest effective date legally possible has been assigned (the date of receipt of claim for service connection), and no effective date for the award of service connection earlier than August 26, 2013 is assignable, the appeal for an earlier effective date for the acquired psychiatric disorder is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons, the Board finds that under the undisputed facts of this case, an effective date prior to August 26, 2013 (date of claim) for the award of service connection for the acquired psychiatric disorder is not warranted as a matter of law. 38 U.S.C. § 7104 (2012) (providing that the Board decides only actual questions of fact or law in a case). Disability Rating Legal Authority Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability ratings shall be applied, the higher rating is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). The Veteran’s acquired psychiatric disorder (unspecified trauma and stressor related disorder with sleep impairment (claimed as posttraumatic stress disorder (PTSD)) is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Initially, the Veteran received a 30 percent rating for the acquired psychiatric disorder from August 26, 2013 to February 28, 2017. See December 2014 Rating Decision. The General Rating Formula provides that a 30 percent rating was assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). In August 2017, VA granted a higher rating of 50 percent for the acquired psychiatric disorder for the period from February 28, 2017. See August 2017 Rating Decision. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating will be assigned for 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. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent schedular rating contemplates 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. 38 C.F.R. § 4.130. The use of the term “such as” in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id.; Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating when the appeal was certified after August 4, 2014. As the instant appeal was certified after August 4, 2014, the Board will not rely on GAF scores for rating purposes. 2. Rating the Acquired Psychiatric Disorder from August 26, 2013 to February 28, 2017 The Veteran generally contends that the acquired psychiatric disorder has been manifested by more severe symptoms and impairment than those contemplated by the 30 percent disability rating from August 26, 2013 to February 28, 2017. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from August 26, 2013 to February 28, 2017, the weight of the competent and probative lay and medical evidence demonstrates that a disability rating in excess of 30 percent for the service-connected acquired psychiatric disorder is not warranted as the Veteran’s acquired psychiatric disorder has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). The evidence does not support findings of occupational and social impairment or symptoms to more nearly approximate the criteria for a higher rating in excess of 30 percent. In the June 2014 VA Examination, the VA examiner diagnosed an unspecified trauma- and stressor-related disorder and noted that the Veteran does not meet the criteria for PTSD. The Veteran described combat exposure in Vietnam, which included: seeing fellow servicemembers die and get wounded, getting injured himself, and being exposed to enemy fire. After separation from service, the Veteran reported that he worked at the post office for 7 years, was a subway operator for 11 years, drove limousines for 19 years, worked at the post office again for one and half years, and then drove vehicles for the government. The Veteran reported that he likes his job and values the freedom associated with driving professionally. The Veteran also reported that he divorced once, had two children, and remarried, maintaining positive contact with his first spouse. In addition, the Veteran claimed that he could manage his own finances and had no legal problems, but previously used a variety of illicit substances. The VA examiner opined that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In rendering this opinion, the examiner noted the following symptoms: anxiety suspiciousness, and chronic sleep impairment. The VA examiner also listed several more specific symptoms that were obtained during the PTSD screening, including: hypervigilance, exaggerated startle response, persistent inability to experience positive emotions, dissociative reactions, sleep disturbance, and intrusive distressing memories. The Veteran submitted two lay statements dated in July 2014: one from the Veteran’s former spouse A.S. and one from the Veteran’s brother. In the first lay statement, A.S. explained that she knew the Veteran before he entered service, married after he returned from Vietnam, and eventually divorced. A.S. reported that after the Veteran returned from Vietnam in 1972, the Veteran was restless, argumentative, extremely reckless, and unable to cope with everyday life responsibilities. July 2014 A.S. Lay Statement. A.S. also claimed that the Veteran could not focus, was uninterested in his family, and was terminated from many jobs. In the second lay statement, Veteran’s brother reported that the Veteran returned to the family home after discharge from service and began sleeping with a large knife to feel safe. The brother reported that the Veteran continued to sleep with a knife for a few weeks while they both resided in the family home. July 2014 lay statement. The Board finds that, to the extent that acquired psychiatric disorder has been manifest by symptoms such as anxiety, suspiciousness, and chronic sleep impairment, the Veteran’s disability more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which warrants a 30 percent rating. The Veteran’s own statements in the VA treatment records indicate stable employment and that he enjoyed his work. The Veteran reported positive social interactions with family, and did not report problems establishing familial and social relationships. October 2013 VA Treatment Records. The A.S. lay statement described the Veteran’s lack of focus and interest in family, but the Veteran has managed to maintain a positive relationship with A.S. The Veteran described himself as a person who values his freedom. A.S. also emphasized that the Veteran was unable to cope with responsibility and was terminated from employment several times, which is a stark contrast to the Veteran’s reported, stable employment history at the June 2014 VA examination. The brother’s lay statement describing the Veteran sleeping with a knife for safety, occurred right after separation from service for a couple of weeks. The statement and the record do not indicate that the Veteran presented these symptoms during any period on appeal. For these reasons, the totality of the evidence demonstrates that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks as listed or similar to those listed under the 30 percent rating for the acquired psychiatric disorder for this staged period on appeal from August 26, 2013 to February 28, 2017. 3. Rating the Acquired Psychiatric Disorder from February 28, 2017 The Veteran generally contends that the acquired psychiatric disorder has been manifested by more severe symptoms and impairment than those contemplated by the 50 percent disability rating, from February 28, 2017. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from February 28, 2017, the weight of the competent and probative medical evidence demonstrates that a disability rating in excess of 50 percent for the service-connected acquired psychiatric disorder is not warranted as the Veteran’s acquired psychiatric disorder has been manifested by occupational and social impairment with reduced reliability and productivity. The evidence pertaining to this staged period on appeal does not support a rating in excess of 50 percent. At the July 2017 VA examination, the Veteran reported no changes in his social, marital, family, occupational, educational, legal, and behavioral history since the last exam. The VA examiner opined that the Veteran has occupational and social impairment with reduced reliability and productivity, noting symptoms such as: impairment of short- and long-term memory (like retaining only highly learned material while forgetting to complete tasks), impaired judgment, hypervigilance, and being easily startled. These symptoms and degrees of social and occupational impairment are consistent with the criteria for a 50 percent rating. The VA examiner also assessed that the Veteran was not at risk for suicide. (Continued on the next page)   For these reasons, the totality of the evidence demonstrates that the Veteran has occupational and social impairment with reduced reliability and productivity as listed or similar to those listed under the 50 percent rating for the acquired psychiatric disorder for this staged period on appeal from February 28, 2017. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Danielle Costantino, Associate Counsel