Citation Nr: 18149466 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-57 556 DATE: November 9, 2018 ORDER Whether VA has received new and material evidence to reopen a claim of entitlement for service connection for a low back disorder is dismissed. Entitlement to service connection for fibromyalgia is dismissed. Entitlement to service connection for depression is dismissed. Entitlement to a rating greater than 30 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran did not file a substantive appeal for the issues of whether VA has received new and material evidence to reopen a claim entitlement to service connection for a low back disorder and entitlement to service connection for fibromyalgia. 2. The Veteran did not file a Notice of Disagreement (NOD) for the issue of entitlement to service connection for depression. 3. The Veteran's non-service connected depression causes his panic attacks. 4. The Veteran's PTSD is not manifested occupational and social impairment with reduced reliability. CONCLUSIONS OF LAW 1. The issues of whether VA has received new and material evidence to reopen a claim of entitlement to service connection for a low back disorder, entitlement to service connection for fibromyalgia, and entitlement to service connection for depression are dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.100, 20.200, 20.300, 20.302. 2. From November 18, 2013, the criteria for a rating greater than 30 percent for PTSD has not been met. 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 December 1993 to March 1997. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of September 2014 and July 2016 by the Department of Veterans Affairs (VA). Issue 1: Whether VA has received new and material evidence to reopen a claim of entitlement for service connection for a low back disorder. Issue 2: Entitlement to service connection for fibromyalgia. To perfect an appeal, a VA Form 9, i.e., a substantive appeal, must be filed within 60 days from the date VA mails a claimant a Statement of the Case (SOC) or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends later. 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.302. Otherwise, the rating decision becomes final. 38 C.F.R. § 20.1103. The filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board's jurisdiction. In Percy v. Shinseki, 23 Vet. App. 37 (2009), the U.S. Court of Appeals for Veterans Claims (Court or CAVC) held that the 60-day period in which to file a substantive appeal is not jurisdictional, and thus, VA may waive any question of timeliness in the filing of a substantive appeal. In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Unlike the claimant in Percy, in this Veteran's case, VA has not "consistently treated this matter as if it was part of the timely filed Substantive Appeal." Percy, 23 Vet. App. at 46. VA denied service connection for Issues 1 and 2 above and entitlement to service connection for PTSD in September 2014. The Veteran appealed these three denials in October 2014. VA issued a SOC for Issues 1 and 2 in July 2016 while granting service connection for PTSD and denying service connection for depression (which the Veteran never claimed) via a July 2016 rating decision. The Veteran appealed the 30 percent rating VA assigned for his PTSD in a September 2016 NOD. VA then issued a SOC in November 2016 for this issue as well as entitlement to service connection for depression. The undersigned will address the depression issue separately below. Finally, in January 2017, the Veteran submitted a VA Form 9 in which he checked both possible appellate options when he should have selected only one. Indeed, he indicated he was limiting his appeal to those issues that "is the award letter" and all issues on the SOC without identifying the SOC to which he was referring. The undersigned observes several things. First, the Veteran did not submit a VA Form 9 within 60 days of the July 2016 SOC, but he did submit a VA Form 9 within 60 days of the November 2016 SOC. Second, although the Veteran muddied matters by selecting both appellate options, it is clear based on the two-page statement accompanying the January 2017 Form 9 that he limited his appeal to the issue of a rating greater than 30 percent for PTSD as this is the issue which he exclusively addressed. Notwithstanding this, VA certified three issues via VA Form 8s for appellate review – the back claim, the depression claim, and the increased rating for PTSD. However, 38 C.F.R. § 19.35 notes that the certification of appeals is used for administrative purposes and is not binding on the Board. In contrast to Percy, where a Veterans Law Judge took hearing testimony on the issue, the Board in this case took no action to recognize the issue; to the contrary, the Board is now, at its first opportunity, explicitly declining jurisdiction because the Veteran did not file a timely VA Form 9 for the back claim and the fibromyalgia claim. Accordingly, the facts of this case are distinguished from Percy, and the undersigned will dismiss these appeals. Issue 3: Entitlement to service connection for depression. The Board must have jurisdiction to review the denial of a claim. To have jurisdiction, the Veteran must submit a written Notice of Disagreement (NOD) within one year of notification of VA's denial of the claim to initiate an appeal. The Veteran claimed service connection for PTSD in November 2013. VA, as described above, granted service connection in July 2016. However, based on the Veteran's March 2016 VA compensation examination, VA created a new issue – entitlement to service connection for depression – which it also denied in July 2016. The Veteran submitted an NOD in September 2016. He expressly appealed "evaluation of disability" for his PTSD, but he did not appeal the denial of service connection for depression. Notwithstanding this, VA treated the depression issue as if it was on appeal by including it in the November 2016 SOC. VA erred. It is clear from the NOD that the Veteran elected not to appeal this issue. Accordingly, the Board must dismiss the claim. 38 U.S.C. § 7105(d); 38 C.F.R. § 20.101(d). Issue 4: Entitlement to a rating greater than 30 percent for PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection is most probative of the degree of disability existing at the time that the initial rating was assigned, and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. VA has rated the Veteran’s PTSD as 30 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, effective November 8, 2013. Pursuant to the General Rating Formula for Mental Disorders, a 50 percent evaluation is warranted where PTSD causes occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent evaluation is warranted where PTSD causes occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or worklike setting) and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where PTSD causes total occupational and social impairment, due to symptoms such 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall 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. Id. 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(b). VA examined the Veteran for compensation purposes in March 2016. Critically, the examiner diagnosed the Veteran with two psychiatric disorders – PTSD and depression. The examiner opined that service caused the Veteran's PTSD, and that a back injury caused the Veteran's depression. As VA has denied service connection for the Veteran's back claim, VA could not service connect the Veteran's depression on a secondary basis. The separate diagnoses are important because VA can only compensate the disabling effects of the PTSD, which as reflected in the March 2016 examination report, are differentiated from those of the depression. The Veteran argues for a higher rating, as seen in the September 2016 NOD, based upon the frequency and severity of his panic attacks. However, the March 2016 VA examiner noted in Section I(3)(b) of his report that the Veteran's depression, not his PTSD, cause his panic attacks. Indeed, the symptoms of his depression include "mood and behavior problems such as chronic anger, anxiety with panic attacks and general depression that often manifests in either irritability and/or anxiety." Given that nothing in the claims file contravenes this finding, the panic attacks cannot be considered when determining the severity of the Veteran's PTSD. Additionally, while the Veteran wrote "my anxious stress is a direct result of my PTSD" in the September 2016 NOD, he does not have medical training, so he is not competent to opine on the cause of the panic attacks. VA has treated the Veteran extensively for his depression. However, the symptoms associated with the depression, as described in the compensation examination report and the VA treatment records, cannot be considered in the Board's analysis. The March 2016 examiner noted this too – "the veteran's mental health problems appear to be primarily related to his chronic pain and the problems and limitations his medical conditions have led to including not being able to work and be active." Given the foregoing, there is no basis to award a higher rating for PTSD. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Sopko, Counsel