Citation Nr: 18155679 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 15-31 314A DATE: December 6, 2018 ORDER Entitlement to an effective date earlier than January 29, 2004 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial disability rating for PSTD in excess of 70 percent is denied. FINDINGS OF FACT 1. An original claim for service connection for depression was filed in February 1983 and was denied in an August 1986 rating decision that was not appealed; petitions to reopen the claim for service connection for a psychiatric disorder were submitted in August 1990 and July 1994, but were denied in March 1993 and August 1994, respectively, and were not appealed. 2. A petition to reopen the claim for PTSD was submitted in January 2004 and the petition was granted in May 2008, service connection for PTSD was granted in a July 2012 Board decision, and a grant of service connection was effectuated in a September 2012 rating decision. 3. The Air Force publications associated with the file in August 2008 were records that could not have obtained when VA decided the claim in August 1986 because the Veteran failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 4. The July 2012 Board decision granting service connection for PTSD was not based all or in part on the Air Force publications associated with the file in August 2008. 5. The Veteran’s PTSD is characterized by 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; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; depressed mood; anxiety; and chronic sleep impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 29, 2004 for a grant of service connection of PTSD have not been met. 38 U.S.C. §§ 5107, 5110(c); 38 C.F.R. §§ 3.156, 3.400. 2. The criteria for an increased disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier Effective Date Generally, the effective date of an award of disability compensation shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). However, an award based all or in part on relevant official service department records that existed, but were not associated with the claims file when VA first decided the claim, is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. § 3.156(c)(1). At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c). Such records include, but are not limited to: service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of § 3.156(c)are met; additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and declassified records that could not have been obtained because the records were classified when VA decided the claim. Id. However, § 3.156(c) does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. The Veteran seeks an effective date earlier than January 29, 2004 for the grant of service connection for PTSD. Having reviewed the record, the Board finds that an effective date earlier than January 29, 2004 is not warranted. Specifically, the Veteran seeks an earlier effective date of February 8, 1983. By way of history, the Veteran filed an original claim for service connection for depression in February 1983 that was denied in an August 1986 rating decision. The claim was not appealed and, as such, the August 1986 decision was final. Subsequent petitions to reopen the claim were submitted in August 1990 and July 1994; however, the petitions were denied in March 1993 and August 1994, respectively, and were not appealed. Most recently, a petition to reopen the claim for PTSD was submitted in January 2004, and service connection for PTSD was granted in a July 2012 Board decision. The current appeal arises from the grant of service connection that was effectuated in a September 2012 rating decision by the agency of original jurisdiction (AOJ). As the claim was not filed within 1 year of separation of service, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. Here, the appropriate effective date is the date of receipt of claim, January 1, 2004. The Board finds no legal basis for entitlement to an earlier effective date pursuant to 38 C.F.R. § 3.156(c). The Veteran contends that entitlement to an earlier effective date of February 8,1983 (the date of the initial claim for service connection for a psychiatric disorder) is warranted pursuant to 38 C.F.R. § 3.156(c). Specifically, he asserts that Air Force publication records that were considered by the July 2012 Board decision were relevant official service department records that existed and were not associated with the claims file when VA first decided the claim in August 1986. Entitlement to an earlier effective date of February 8,1983 is not warranted, and the August 1986 decision will not be reconsidered. The Board notes that the declassified Air Force publication records were not associated with the file at the time of the August 1986 decision. However, the Board emphasizes that 38 C.F.R. § 3.156(c)(1) does not apply to records that VA could not have obtained when it decided the claim because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). A review of the record reveals that, at the time of the August 1986 rating decision, the Veteran did not provide any lay statements describing any in-service events. He did not report any details of combat experience and did not state whether he witnessed any deaths or serious injuries. Further, the Veteran did not report any dates, locations, or unit assignments relevant to the stressful event. Accordingly, the Board finds that the records could not have been obtained prior to or at the time of the August 1986 decision. The Board notes that the Veteran, through his representative, cites to Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014) to support his contention. However, Stowers is distinguished from the present case as it involved incomplete service medical records that expressly documented an in-service injury. In contrast, the Veteran’s case relies on declassified Air Force records merely indicating that the Veteran may have been exposed to combat at a specific Air Force base. These declassified records could not have been obtained or identified without information of a date range or location, at minimum. In light of the above, the Board finds that as these records could not have been identified due to lack of information, § 3.156(c)(1) does not apply. Finally, an earlier effective date of August 21, 1990 or July 19, 1994 is not warranted. The Board notes that the declassified Air Force publication records were not associated with the file at the time of the March 1993 and August 1994 decisions. However, the Board emphasizes that the July 2012 grant of service connection was not made based all or in part on the declassified Air Force records. As noted by the July 2012 decision and the February 2010 JSRRC report, the declassified records revealed no instances of rocket or mortar attacks at the Air Force base during the Veteran’s service in Vietnam. Rather, the July 2012 decision noted personnel records that were already previously associated with the record. Indeed, the Board found that a stressor was confirmed by citing to a performance report that commended the Veteran’s composure during enemy mortar attacks, in combination with the presence of a positive medical nexus opinion. Therefore, the Board does not find that July 2012 decision to grant service connection for PTSD was based all or in part on the declassified records. Consequently, an earlier effective date is not warranted based on the August 1990 and July 1994 petitions. An effective date earlier than January 29, 2004 for the grant of service connection for PTSD is not warranted pursuant to § 3.156(c)(3). Increased Rating The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Psychiatric disabilities, to include PTSD, are evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. 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, 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); or inability to establish and maintain effective relationships. A 100 percent disability rating requires 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; or memory loss for names of close relatives, own occupation, or own name. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether the Veteran exhibited the symptoms listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where service connection 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. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Having reviewed the record, the Board finds that the Veteran’s PTSD is characterized by 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; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or a work-like setting); or inability to establish and maintain effective relationships; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; depressed mood; anxiety; and chronic sleep impairment. A total disability rating is not warranted as there is no showing 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; or memory loss for names of close relatives, own occupation, or own name. The Veteran’s thought process was noted to be goal directed, coherent, and unremarkable. See February 2004 and June 2007 VA Records. Though he endorsed auditory hallucinations in April 2010, the record does not indicate that these hallucinations were persistent as this was reported only once. The remainder of the record documents the Veteran’s explicit denials of any hallucinations and observations by clinicians that the Veteran did not exhibit or endorse any psychotic symptoms. See February 2004 and June 2007 VA Records; March 2010 and January 2015 VA Examinations. The Veteran did not have inappropriate behavior, had no problems with activities of daily living, was oriented to time and place, and presented with normal memory. See February 2004, January 2006, June 2007, April 2010 VA Records; March 2010 and January 2015 VA Examinations. Further, the Veteran’s PTSD does not result in total social impairment. See March 2010 VA Examination; January 2015 VA Examination. The Veteran has remained married to his first wife for over 20 years. Though he occasionally reported marital strain and verbal fights, he also stated that they get along fairly well and that he relied on his wife for help, to include waking him up from nightmares. The Veteran additionally reported good family relationships with his mother and all his brothers. He reported having difficulty maintaining friendships, but endorsed having one friend in March 2010. This is not to say that the Veteran does not experience any social impairment. Indeed, it was noted in March 2012 that the Veteran had extensive difficulty in interactions with supervisors, coworkers, and the public. However, the preponderance of the evidence documents the Veteran’s reports that he has multiple familial relationships that are good. There is no showing of total social impairment. Finally, the Board notes that the Veteran’s Global Assessment of Functioning (GAF) scores ranged from 35 to 65. The Board notes that the use of the GAF scale has been abandoned in the DSM-5 because of, among other reasons, “its conceptual lack of clarity” and “questionable psychometrics in routine practice.” See American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders at 16 (2013). In this case, however, DSM-IV was in use during portions of the appeal period when relevant medical entries of record were made. Therefore, the assigned GAF scores remain relevant for consideration in this appeal. Here, the Board finds that the Veteran’s lowest GAF score of 35 aligns with the 70 percent criteria of occupational and social impairment with deficiencies in most areas. Indeed, GAF scores ranging between 31 and 40 are assigned when there is some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. In sum, the evidence indicates that the Veteran’s PTD results in occupational and social impairment with deficiencies in most areas. The evidence does not show total occupational and social impairments. Accordingly, a rating in excess of 70 percent is not warranted, and the claim for an increased disability rating must be denied. The Board has considered all psychiatric symptoms in reaching this conclusion. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel