Citation Nr: 18151049 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-29 671 DATE: November 16, 2018 ORDER Entitlement to an effective date earlier than September 3, 2010, for the award of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and an anxiety disorder (hereafter referred to simply as an “acquired psychiatric disorder”), is denied. Entitlement to an initial disability rating in excess of 70 percent for a service-connected acquired psychiatric disorder is denied. FINDINGS OF FACT 1. In a December 2007 rating decision, the Regional Office (RO) denied the Veteran’s claim for service connection for an acquired psychiatric disorder; the Veteran did not perfect this appeal, and that decision became final. 2. The Veteran initiated his current claim for service connection for an acquired psychiatric disorder on September 3, 2010; thus, that is the earliest possible date for which service connection may be awarded. 3. The Veteran’s service-connected acquired psychiatric disorder did not result in total occupational or social impairment at any time during the appeal period. CONCLUSIONS OF LAW 1. The December 2007 rating decision is final with respect to entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for an effective date earlier than September 3, 2010, for the award of service connection for the Veteran’s acquired psychiatric disorder have not been met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 3. The criteria for an initial disability rating in excess of 70 percent for a service-connected acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1972 to May 1975. This case is on appeal before the Board of Veterans’ Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The issues of entitlement to service connection for a back condition and clear and unmistakable error (CUE) in prior RO decisions from November 2002, January 2003, and December 2007 have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran claims that he is entitled to an earlier effective date for the award of service connection for his acquired psychiatric disorder. However, the prior determinations regarding this issue are final, and it is not possible for him to receive a grant of service connection earlier than the date of his current claim. Thus, that appeal is denied. Similarly, there is no evidence that the Veteran’s service-connected acquired psychiatric disorder results in total occupational and social impairment. Therefore, his claim for an initial disability rating in excess of 70 percent for that condition is also denied. I. Earlier Effective Date The Veteran seeks an effective date earlier than September 3, 2010 for the award of service connection for an acquired psychiatric disorder. See May 2018 appellate brief. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, 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. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). Appellate review of a rating decision is initiated by an NOD and completed substantive appeal after an SOC has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104(b), 3.105(a). 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 Sears, 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. A specific claim in the form prescribed by the Secretary of VA has be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). A claim was 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 indicating intent to apply for a benefit under VA law may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a). The Board notes that the Veteran previously applied for service connection for an acquired psychiatric disorder. The most recent prior claim resulted in a December 2007 rating decision, which denied service connection for the Veteran’s acquired psychiatric disorder. The Veteran did not submit a formal or informal NOD regarding this determination, nor did he submit evidence relating to this claim within one year of its issuance. As such, the December 2007 rating decision became final. The VA received the Veteran’s application to reopen his claim for service connection for an acquired psychiatric disorder on September 3, 2010. Based on that submission, a March 2012 rating decision granted service connection for an acquired psychiatric disorder, effective September 3, 2010. Under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(q)(2), the effective date of an award cannot not be earlier than the date of receipt of the claimant’s application. Although previous final determinations may be overturned with evidence of CUE, neither the Veteran nor his representative has alleged CUE in any of the prior determinations. Thus, because service connection for the Veteran’s acquired psychiatric disorder was established from the date of receipt of his current application, it is not possible to grant an effective date earlier than September 3, 2010. II. Increased Rating The Veteran alleges that his service-connected acquired psychiatric disorder warrants an initial disability rating in excess of 70 percent throughout the entire period on appeal, which began on September 3, 2010, the date service connection was established. The Board notes that the RO originally assigned a 30 percent disability rating, which the Veteran appealed in an October 2012 NOD. After further consideration, the RO raised this evaluation to 70 percent, effective September 3, 2010, in a May 2016 rating decision. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under the General Rating Formula for Mental Disorders, the Veteran’s acquired psychiatric disorder is evaluated under Diagnostic Code 9411. 38 C.F.R. §§ 4.130. Diagnostic Code 9411 assigns a 70 percent disability rating 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 the inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted for 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. Id. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) (citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so)). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-4 or DSM-5). Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Id. The Veteran was afforded a VA psychological examination in April 2011. The examiner reviewed the claims folder, diagnosing the Veteran with PTSD under the DSM-4 criteria. The Veteran indicated that lack of sleep has been a problem since 1973, saying that he will only sleep around 3 hours per night. He also stated that he does not like being around people, and has problems with anger, hostility, and lack of patience. He claimed that he could not keep jobs after service because he did not fit in and could not take orders. The Veteran reported having a job in the last 12 months at a self-storage company, which he worked for 3 years but lost due to downsizing. The Veteran had a girlfriend at the time, but his social interaction was otherwise limited. He also stated that he used alcohol and cocaine about once per week. The Veteran endorsed nightmares almost every night, along with regular feelings of hypervigilance, irritability, and being easily frustrated. The examination report reflects that the Veteran’s appearance and grooming were within normal limits, and that his behavior was appropriate. There was no evidence of suicidal thoughts, memory impairment, hallucinations, delusions, or panic attacks. The rate and flow of his speech was normal, and the Veteran was able to maintain his personal hygiene and activities of daily living. However, there was evidence of a chronic sleep impairment and impaired impulse control. The examiner rated the severity of the Veteran’s PTSD as moderate, with chronic and continuous symptoms. A treatment record from August 2011 reflects that the Veteran was not sleeping well, getting around 4 hours of sleep per night. He reported that he would wake up in the middle of the night, watch television or walk around for a little while, and then fall asleep again. The Veteran endorsed occasional nightmares and indicated that he would drink 1 or 2 alcoholic drinks per week. In September 2011, Dr. F.W., a VA psychiatrist, diagnosed the Veteran with anxiety disorder, not otherwise specified. The Veteran reported problems with anger, stating that he would sometimes become violent with his girlfriend, her daughter, family members, and others. The Veteran underwent another VA psychological examination in October 2013. The examiner confirmed the earlier diagnosis of PTSD, and also diagnosed him with cocaine dependence and alcohol dependence, both in partial remission. The examiner stated that it was possible to differentiate symptoms attributable to each disorder since the Veteran only used cocaine and alcohol 2 or 3 times per month. Except during these times, his symptoms are attributable to solely to PTSD. The examination report reflects that the Veteran was well-groomed and cooperative during the exam. His speech was fluent and his thought processes logical, coherent, and goal-directed. There was no evidence of perceptual disturbance or delusional thinking. Insight and judgment were intact and his mood was euthymic, with normal range of affect. The Veteran denied suicidal or homicidal ideation, but reported difficulty sleeping, with cold sweats and nightmares. He also indicated that he will work around the house and go out for walks. Furthermore, there was no consistent history of PTSD treatment. Based on these findings, the examiner opined that the Veteran’s condition results in occupational and social impairment with reduced reliability and productivity. The examiner also concluded that the Veteran’s chronic sleep impairment may make it more difficult for him to maintain a regular work schedule, while his irritability may make it more difficult to interact appropriately with peers and supervisors at work. In March 2017, the Veteran was afforded a final VA psychological examination. The examiner reviewed the claims file and diagnosed the Veteran with PTSD, noting that he only experiences milder symptoms. The examiner went on to say that while the Veteran met the PTSD criteria, his symptoms were attenuating over time and that he only “barely” met the criteria at this examination. The Veteran reported poor sleep since service, but rare nightmares. He stated that he is drinking more but not acting out. The Veteran denied frank depression, suicidal ideation, anxiety, panic attacks, flashbacks, and intrusive thoughts and memories. He also stated that he was not in therapy or on psychiatric medication. The examination report notes the existence of a sleep impairment, but reflects no evidence of delusions or hallucinations. During the examination, the Veteran was oriented to time, person and place, with no evidence of memory loss. Rate and flow of speech were normal, with no evidence of thought process impairment, depression, panic attacks, or impaired impulse control. His appearance was neat and his behavior during the session was appropriate. Based on these findings, the examiner opined that the Veteran’s condition results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the application of a disability rating in excess of 70 percent at any point during the appeal period. In order to qualify for a 100 percent disability rating under Diagnostic Code 9411, there must be evidence of total occupational or social impairment. However, this is not reflected anywhere in the claims file. During the April 2011 examination, the Veteran stated that he had been working at a self-storage facility for the previous 3 years. The Board notes that he lost that job because of downsizing, not due to issues related to his psychological condition. The Board also notes that, despite various difficulties, the Veteran has maintained a long-term romantic relationship with his girlfriend. Furthermore, the record does not reflect any persistent delusions, hallucinations, or grossly inappropriate behavior, nor is there evidence that the Veteran is even intermittently incapable of self-care. Indeed, the examination reports from April 2011, October 2013, and March 2017 all show that the Veteran was cooperative and well-groomed. Additionally, the Veteran was generally described as fully oriented, with logical, coherent, goal-directed thought processes. Lastly, the April 2011 and October 2013 examiners assessed only a moderate degree of limitation, while the March 2017 examiner characterized the Veteran’s symptoms as mild. Given this evidence, there is nothing to suggest that a 100 percent evaluation is warranted under Diagnostic Code 9411. Thus, the Board finds that the weight of the evidence is against the finding of an initial disability rating in excess of 70 percent under Diagnostic Code 9411 for the Veteran’s service-connected acquired psychiatric disorder throughout the entire appeal period. To the extent that any higher level of compensation is sought, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the claim is denied. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel