Citation Nr: 18152875 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 17-52 369 DATE: November 26, 2018 ORDER An initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD), to include major depressive disorder, is granted. Entitlement to an effective date earlier than May 4, 2010, for the grant of an increased rating for PTSD and major depressive disorder is denied. FINDINGS OF FACT 1. The Veteran’s PTSD more closely approximates occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. A claim for service connection for PTSD, major depressive disorder, or any other psychiatric disability, was not received prior to May 4, 2010. CONCLUSIONS OF LAW 1. The criteria are met for an initial rating of 70 percent, but no higher, for PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an effective date earlier than May 4, 2010, for the grant of an increased rating for PTSD and major depressive disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1987 to August 2002. The Veteran died in June 2015. The appellant is his surviving spouse and has been properly substituted as the claimant for purposes of processing the claims to completion. 38 U.S.C. § 5121(a). The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston Salem, North Carolina. 1. Increased rating for PTSD and major depressive disorder. For the reasons that follow, the Board finds that an initial rating of 70 percent, but no higher, is warranted for the Veteran’s PTSD and major depressive disorder. The Veteran’s service-connected disability is currently assigned a 50 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. Diagnostic Code 9411 is deemed by the Board to be appropriate primarily because it pertains specifically to the diagnosed disability in the Veteran’s case (PTSD). In any event, with the exception of eating disorders, all mental disorders are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Under the General Rating Formula for mental disorders, a 50 percent rating is for assignment where the disorder is manifested by 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, Diagnostic Code 9411. A 70 percent rating is contemplated 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. Id. The maximum 100 percent rating is warranted when there is evidence of 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; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, any analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under [38 C.F.R.] § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “[38 C.F.R.] § 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 Veteran’s service-connected PTSD and major depression are currently rated as 50 percent disabling throughout the appeal period. For the reasons that will be explained, the Board finds that a 70 percent rating, but no more, is warranted. As noted above, the assignment of a 70 percent disability rating requires occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Veteran was afforded a VA examination in October 2012. During a clinical interview, the Veteran reported that he stopped working in February 2011 because of his back pain. Since then, he had become increasingly depressed and irritable. He reported that sleep was difficult and his motivation was low. The October 2012 examination revealed that the Veteran’s symptoms included a depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, difficulty understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The October 2012 VA examiner indicated that the pain and discomfort associated with his back condition resulted in the Veteran’s inability to continue his employment as a truck drive and had impacted socialization and his marriage. It was noted that the Veteran’s PTSD and depression result in occupational and social impairment with deficiencies in most areas. In a subsequent November 2012 medical opinion, the October 2012 VA examiner reported that the Veteran’s service-connected mental impairments will cause him to miss 3 days of work per month and that for at least 3 days per month, he could not stay focused for at least 7 hours of an 8-hour workday. The Veteran was afforded an additional VA examination in October 2014. A clinical interview conducted during the examination revealed that the Veteran’s marriage of 25 years had just ended but he was unclear as to why his wife left. He reported having an excellent relationship with his adult children, and was on civil terms with his wife. The Veteran brought a friend to the examination and an interview with the Veteran and his friend revealed that he had been exhibiting episodes of social withdraw, spending several days isolating himself from others in his home. It was noted that approximately 2 years ago, the Veteran was engaged in a verbal altercation with his neighbors and the police were called. The Veteran had made threats during the altercation and brandished a weapon, but did not engage in violence and no arrests were made during the incident. A month prior to the examination, the Veteran experienced a “nervous breakdown” at work where he began crying and speaking in a confused manner. He reported experiencing anxiety around others and panic attacks, but denied physical or verbal altercations at work. He continued to serve as a deacon in his church and attended every week. The October 2014 VA examiner noted that the Veteran was adequately groomed. He initially presented as guarded and suspicious with minimal eye contact and asked to leave the door open during the interview. The Veteran was agitated with pressured speech and his thought process was circumstantial. His attention and concentration were diminished and his insight and judgment were poor. The October 2014 VA examination revealed that the Veteran had experienced suicidal thoughts, but indicated that suicide is against his religious principles. He also admitted experiencing occasional homicidal thoughts, but denied acting on these thoughts, and attempted to avoid situations that trigger these thoughts. He reported sleep disturbance, feeling jumpy. The examiner also noted that the Veteran’s symptoms include a depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. After a review of the record, the Board finds that the impact of the Veteran’s service-connected PTSD and major depressive disorder on his occupational and social functioning more nearly approximates the degree of impairment contemplated by a 70 percent rating. The Board has also considered the Veteran’s entitlement to 100 percent disability rating; however, upon review, the record does not indicate total occupational and social impairment. While cognizant that the Veteran was described has intermittently unable to perform activities of daily living, including maintenance of minimal personal hygiene, the record does not indicate total social and occupational impairment exists as a result of the service-connected psychiatric disorders. In fact, as noted above, the Veteran remained active as a deacon in his church and attended regularly. He maintained a good relationship with his adult children and had a friend come to his examination to offer evidence. Although the Board does not diminish the significance of the Veteran’s symptoms, the evidence does not demonstrate total social impairment. In addition, the Board notes that during the October 2014 VA examination, the Veteran reported that he experiences occasional homicidal thoughts, but attempts to avoid situation that trigger these thoughts. The decision to remove himself from the situation in order to prevent destructive behavior reflects a degree of functioning not contemplated in the 100 percent criteria. Accordingly, the Board finds that the schedular criteria for the next higher 100 percent disability evaluation have not been met. In summary, based on the evidence of record, the Board finds that the symptomatology reported by the Veteran and documented in the record is more reflective of occupational and social impairment consistent with the 70 percent rating the Board is assigning. 2. Entitlement to an effective date earlier than May 4, 2010 for the grant of service connection for PTSD The Veteran was originally granted service connection for PTSD in the December 2014 rating decision on appeal. A 30 percent disability rating was assigned effective May 4, 2010. During the pendency of the appeal, the RO granted an increased rating of 50 percent for the Veteran’s PTSD and major depressive disorder. The increased rating was assigned effective the date of service connection, May 4, 2010. In October 2017, the appellant, through her attorney, asserted entitlement to an earlier effective date. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Here, the RO established an effective date of service connection for PTSD, to include major depressive disorder, as of May 4, 2010 as this is the day that the VA received VA Form 21-4138 (Statement in Support of Claim) in which the Veteran first expressed any intentions to the VA that he wanted to claim any psychiatric disabilities. There is no claim of record, formal or informal, for service connection for any acquired psychiatric condition prior to May 4, 2010. Having determined that the Veteran’s claim was filed on May 4, 2010, the Board must now determine when entitlement to service connection arose. As noted, an effective date is assigned based on the date of the receipt of a claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Thus, even if the Veteran has been experiencing PTSD and depression following his separation from service, his May 4, 2010 claim is clearly the later of two dates specified by law. Moreover, the appellant is challenging the effective date assigned to the increased rating. This increased rating cannot predate the date of service connection. Hence, on this record, an earlier effective date is not assignable by law. M. Donohue Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones Council, Associate Counsel