Citation Nr: 18150797 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-56 583 DATE: November 15, 2018 ORDER Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD), on the basis of substitution, is denied. Entitlement to an effective date prior to September 13, 2011, for the grant of service connection for PTSD, on the basis of substitution, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s PTSD was productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but not productive of occupational and social impairment with reduced reliability and productivity. 2. In an April 2010 rating decision, the Regional Office (RO) denied service connection for PTSD. The Veteran was notified of the decision and of his appellate rights, but he did not appeal or submit new and material evidence within one year of the issuance of the decision. 3. The Veteran filed an application to reopen his claim for service connection for PTSD on September 13, 2011. The record contains no other communication from the Veteran or his representative indicating an intent to file a claim for service connection for PTSD between the April 2010 rating decision and September 13, 2011. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an effective date prior to September 13, 2011, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.156, 3.400, 20.200, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1970 to May 1972. The Veteran died in October 2013, and the appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In that decision, the RO granted service connection for PTSD, effective from September 13, 2011, and assigned an evaluation of 10 percent. In an August 2016 rating decision, the RO increased the evaluation for PTSD to 30 percent for the entire appeal period. The appellant requested substitution for the claim pending at the time of the Veteran’s death. In June 2016, the RO recognized the appellant as a valid substitute claimant in place of the Veteran for the issues on appeal. Accordingly, the appellant has been substituted as the claimant for the purposes of the increased evaluation and earlier effective date claims for PTSD. Law and Analysis Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating 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 as a result of or incident to military 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). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. In this case, as explained below, uniform evaluations are warranted. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt 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 its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran was assigned an evaluation of 30 percent for PTSD, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent evaluation is assigned for occupational and social impairment with an 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when the psychiatric disorder results in 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. A 70 percent rating is warranted when the psychiatric disorder results in 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. A 100 percent rating is warranted when the psychiatric disorder results in 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. 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 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 the claimant’s social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), 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.” The Board notes that the regulations were recently revised to incorporate the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-V) rather than the Fourth Edition (DSM-IV). These provisions only apply to cases received by or pending before the AOJ on or after August 4, 2014. The change does not apply to cases certified to the Board prior to that date. In this case, the Veteran’s claim was certified to the Board after August 4, 2014; therefore, the regulations pertaining to the DSM-V are for application. The Board notes that the VA examination of record does not address the DSM-V criteria, however, given the death of the Veteran, a remand would be futile to obtain an opinion consistent with the DSM-V criteria. Moreover, the diagnostic criteria would not impact the symptoms and impairment that is used for evaluation the disability. Psychiatric examinations frequently include assignment of a global assessment of functioning (GAF) score. The Board notes that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran’s PTSD did not meet the criteria for an evaluation in excess of 30 percent. A 50 percent rating is warranted when the psychiatric disorder results in 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. In this case, the record does not demonstrate that the Veteran’s overall disability picture was consistent with a 50 percent rating or higher at any point during the appeal period, to include consideration of the Veteran’s VA treatment records and the VA examination reports. With regard to social impairment, the record shows that the Veteran had maintained relationships with his family throughout the appeal period. In a December 2011 VA treatment record, the examiner noted that the Veteran lived with his wife and that they had been married for 32 years. In a June 2012 record, he reported that his wife was supportive of his efforts to reduce his alcohol intake. During the September 2012 VA examination, the Veteran indicated that he had a good relationship with his wife and two children and that he was emotionally close to them. He also reported that he had several friends in the past from work with whom he would go out and that he and his wife occasionally socialized with other couples. Thus, the Veteran did not exhibit social impairment that resulted in an inability to maintain effective social relationships. Concerning occupational impairment, in a December 2011 VA treatment record, the Veteran reported that his symptoms worsened after he lost his job in 2010 after his company shut down. He indicated that he was overwhelmed at the prospect of finding a new job. During the September 2012 VA examination, the Veteran stated that he had worked for several years after service, but lost his job due to his company shutting down. After a year of being unemployed, the Veteran retired. Thus, the evidence shows that the Veteran did not have occupational impairment for most of his career and that a worsening of his symptoms was triggered by his inability to find a new job and did not manifest in occupational impairment. The Board notes that, in a July 2016 statement, the appellant reported that the Veteran drank heavily, avoided going out in public, was easily irritated, suffered from an exaggerated startle reflex, was suspicious of others, and had anxiety. She also reported that the Veteran had nightmares throughout their marriage, and on more than one occasion, had placed her in a head lock while they were sleeping. She reported that she had not shared a bed with the Veteran for the last five years of their marriage because he was a restless sleeper. While the record does contain evidence of these symptoms, more recent VA treatment records showed evidence of improvement. In a June 2012 VA treatment record, the Veteran reported that he was feeling a little better and that his feelings of worthlessness had decreased. He also reported that he had successfully cut back on his alcohol intake and that his mood and outlook improved. Furthermore, the Veteran’s symptomatology had not been similar to that of the criteria for an evaluation of 50 percent. The record does not reflect that he exhibited flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, difficulty understanding complex commands, impaired memory, impaired judgement, or impaired abstract thinking. The Veteran did report some disturbances of motivation and mood; however, in the more recent June 2012 treatment record, he reported that his mood had improved. More importantly, the Veteran overall had established and maintained effective work and social relationships. Indeed, during the September 2012 VA examination, the examiner did not note that the Veteran exhibited any difficulty in establishing and maintaining effective work and social relationships. After considering the evidence of record, the Board finds that the Veteran’s symptoms more closely approximated the criteria for an evaluation of 30 percent for the appeal period. Overall, the Veteran had not demonstrated a level of impairment consistent with the 50 percent criteria, nor did the Veteran’s symptoms cause occupational and social functioning with reduced reliability or productivity, or with deficiencies in most of the areas, or resulting in total occupational and social impairment. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 50 percent had not been met or approximated for the entire appeal period. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, 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). The implementing regulation clarifies this to mean, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim re-opened after 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 C.F.R. § 3.400. The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply, as provided below. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means 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). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit 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). 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). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a); McCay v. Brown, 9 Vet. App. 183, 188 (1996), aff'd, 106 F.3d 1577, 1581 (Fed. Cir. 1997). In these cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). For claims received more than one year after the effective date of the liberalizing law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of the request for review. 38 C.F.R. § 3.114(a). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the appellant is not entitled to an effective date earlier than September 13, 2011, for the grant of service connection for PTSD. The appellant has contended that the Veteran was entitled to an earlier effective date for the grant of service connection for PTSD based on amendments to the regulation pertaining to the verification of stressors in claims of entitlement to service connection for PTSD. The Board will construe this as a request for a retroactive effective date for the grant of service connection pursuant to a liberalizing law under 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). An April 2010 rating decision denied the Veteran’s original claim for service connection for PTSD. He did not appeal that decision, and it became final. 38 U.S.C. § 7105. On September 13, 2011, the Veteran submitted a request to reopen the claim for service connection for PTSD. In an August 2013 rating decision, the RO reopened and granted the claim, effective from September 13, 2011. As the previously denied claim for service connection for PTSD had become final, the grant was based on a claim reopened after the final disallowance in April 2010. Thus, the effective date of the award of service connection must be the later of the date that VA received the successful request to reopen the claim or the date entitlement arose. 38 C.F.R. § 3.400(r). In this case, the claim was received on September 13, 2011. There was no request to reopen the claim for service connection that was received prior to that date. Accordingly, there is no earlier effective date possible under the regulation, even if the date of entitlement was earlier. Thus, an earlier effective date is denied under this theory of entitlement. The Board also finds the theory that a retroactive effective date is warranted for the grant of service connection for PTSD pursuant to a liberalizing law is inapplicable here. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). On July 13, 2010, VA published a final rule that amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the occurrence of in-service stressors involving “fear of hostile military or terrorist activity.” See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843 (July 13, 2010); Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 41,092 (July 15, 2010) (correcting the effective and applicability dates). This regulation, codified in 38 C.F.R. § 3.304(f)(3), holds that if a stressor claimed by a veteran is related to the veteran’s fear of hostile military or terrorist activity and a VA psychiatrist or psychologist... confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. This regulatory amendment served as the basis for the grant of service connection for PTSD in this case. Recent case law specifically states that the July 13, 2010, amendment to 38 C.F.R. § 3.304(f) is not a liberalizing rule for the purposes of 38 C.F.R. § 3.114. See Foreman v. Shulkin, 29 Vet. App. 146 (2018); see also Stressor Determinations, 75 Fed. Reg. 39,843. Rather, because 38 C.F.R. § 3.304(f)(3) governs procedural matters rather than creating a new basis for entitlement to service connection for PTSD, it merely relaxes (under certain circumstances) the evidentiary standard for establishing that a stressor occurred. See Stressor Determinations, 75 Fed. Reg. 39,843. As a result, awards under this rule are governed by 38 U.S.C. § 5110(a), rather than 38 U.S.C. §§ 5110(g). Thus, the effective date of benefits awarded pursuant to 38 C.F.R. § 3.304(f)(3) will be assigned in accordance with the facts found, but will not be earlier than the date of the request to reopen the claim. 38 U.S.C. § 5110(a). Thus, in this case, the appropriate effective date must be determined under the general rule for effective dates, as applied above. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In summary, the earliest effective date permitted by law is September 13, 2011, which is the date that VA received the Veteran’s request to reopen a claim for service connection for PTSD. See Foreman v. Shulkin, 29 Vet. App. 146 (2018); 38 C.F.R. § 3.400(r). Accordingly, the appeal is denied. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Saikh, Associate Counsel