Citation Nr: 18157006 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-22 276 DATE: December 11, 2018 ORDER Entitlement to an effective date earlier than September 5, 2014, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a 70 percent initial rating for PTSD is granted. FINDING OF FACT 1. An unappealed September 2008 rating decision denied entitlement to service connection for PTSD; the RO received a petition to reopen the claim for service connection for PTSD on September 5, 2014, which was after the date when entitlement arose. 2. For the period on appeal, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW 1. The criteria for an effective date before September 5, 2014, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114(a), 3.400 (2018). 2. The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2004 to August 2004 and from September 2005 to December 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. As an initial matter, the Board notes that a September 2008 RO decision, denying service connection for PTSD, went unappealed and therefore became final. In September 2014, the Veteran indicated his intent to file a claim, and in December 2014, he filed a petition to reopen his previously denied claim for service connection for PTSD, including new and material evidence to support his claim. Based on this new evidence, the RO reopened the Veteran’s claim and granted service connection for his PTSD in March 2015, awarding him a 50 percent disability rating effective September 5, 2014. The Veteran submitted a notice of disagreement (NOD) in May 2015. The Board notes that the Veteran submitted a separate NOD in October 2018 with respect to the issues concerning bilateral foot condition, chronic lumbar strain, right acromioclavicular joint osteoarthritis, mild bilateral variocele, and total disability rating by reason of individual unemployability (TDIU). The record reflects that the RO has acknowledged the NOD and is actively processing the NOD. The Board consequently will not take further action on those claims at this time. Compare Manlincon v. West, 12 Vet. App. 238 (1999). Additionally, although TDIU has been raised by the record with regard to the Veteran’s claim of PTSD, see Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board notes that the Veteran filed a separate claim for TDIU in September 2016, which is currently under review by the RO. As such, the Board does not have jurisdiction over the issue of TDIU. Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by various correspondences. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). With regard to the duty to assist, all relevant, identified, and available evidence has been obtained. The Veteran was provided VA examinations, the reports of which are adequate for the purpose of evaluating the proper disability rating. The Veteran has not referred to any additional, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Earlier effective date Generally, the effective date of an award of disability compensation is the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date is the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400 (b)(2). The “date entitlement arose” has been interpreted to mean the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). When service connection is granted based on a claim that has been finally denied and subsequently reopened by the submission of new and material evidence, the effective date is the date of VA receipt of the new claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400(q), (r); Sears v. Principi, 16 Vet. App. 244 (2002). A “claim” or “application” is 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). An informal claim is any communication indicating intent to apply for one or more benefits. An informal claim must also be in writing. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999); see also Szemraj v. Principi, 357 F.3d 1370 (2004). VA is required to look to all communications from the veteran, which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992). The date of receipt is the date when a claim, information or evidence was received at VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). On September 5, 2014, the Veteran filed an informal communication indicating his intent to file a claim. Subsequently, in December 2014, he filed his petition to reopen his claim for service connection for PTSD. In March 2015, the RO reopened the claim and granted service connection for the Veteran’s PTSD, providing a disability rating of 50 percent, effective September 5, 2014. The Veteran submitted his notice of disagreement (NOD) with the RO’s March 2015 rating decision in May 2015. His NOD indicates that he is seeking an earlier effective date, the date that his disability arose, and an increased rating for his disability because he is unable to maintain employment and relationships due to his PTSD. However, there is no basis on which to grant an earlier effective date. The Veteran did not perfect an appeal for the September 2008 rating decision, therefore it became final. The Board acknowledges that in limited circumstances, such as the presence of clear and unmistakable error, the finality of a VA adjudication may be attacked. See 38 C.F.R. § 3.105(e). In the present case, however, the Veteran has not alleged clear and unmistakable error or otherwise called into question the finality of the September 2008 rating decision; thus, an earlier effective date is precluded on that basis. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Increased rating for posttraumatic stress disorder Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A 50 percent evaluation is warranted if the evidence establishes there is 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 or social relationships. Id. A 70 percent rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent 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. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court further addressed the value of GAF scores. The Court noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with metal disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” DSM-5 at 16. The Court further explained that although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases. The Veteran is currently in receipt of a 50 percent disability rating for his PTSD, effective September 5, 2014, under DC 9411. Medical treatment records reflect that the Veteran attended support groups, including anger management, and counseling sessions intermittently. The available records indicate that the Veteran reported experiencing nightmares, sleep impairment, flashbacks, anxiety, depression, isolation, avoidance, irritability, and anger. Generally, the treatment notes indicate no impairment in the Veteran’s thought process and content, memory, or attention span. Occasionally, the treatment records report the Veteran’s insight and judgment as “fair” or “poor.” The Veteran submitted a written statement, dated in December 2014, from a psychologist who conducted an assessment and reviewed the Veteran’s VA records, indicating that the Veteran’s PTSD symptoms continue to worsen. The provider noted that the Veteran experienced major impairment in mood, attention, memory, thinking, judgment, capacity to work, and ability to form and maintain effective relationships. The Veteran also experienced hypervigilance, mistrust of others, anxiety, and panic attacks. Moreover, the psychologist noted that the Veteran had difficulty maintaining employment due to anger, anxiety, and difficulty relating to others, and opined that the Veteran is unemployable. The Veteran was afforded a VA examination in March 2015, in which he received diagnoses of PTSD and moderate alcohol use disorder. The examination indicates that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran had symptoms of depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. During the examination, the Veteran reported that he had a close relationship with one of his siblings, and he had a close friend with whom he had monthly contact; he also noted that he had a couple of friends that drank beer with him at his home. The Veteran reported that he had been married to his wife for 9 years and described their relationship as “rough.” Specifically, he indicated that after returning from deployment in 2007, he was drinking alcohol and was abusive to his wife, resulting in their separation for approximately 2 years. The Veteran indicated that he was let go from his last job, which he had for 3 months, due to showing anger at work. In January 2016, VA received a written statement in support of the Veteran’s claim from his wife. She indicated that since returning from deployment, the Veteran was violent and abusive to himself and others. She noted that he experienced nightmares and self-medicated with alcohol. The statement indicates that the Veteran no longer had friends due to his symptoms, and he was unable to be in crowded places. His wife also indicated that the Veteran was unable to hold a job for more than a year because he did not get along with people, especially superiors. After a review of the evidence, the Board finds the Veteran’s PTSD symptoms more nearly approximate the symptoms considered by a 70 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Specifically, due to the Veteran’s anxiety, depression, chronic sleep impairment, impaired impulse control (such as anger, violence, and irritability), disturbances of motivation and mood, difficulty establishing and maintaining effective relationships, and difficulty in adapting to stressful circumstances, the Board finds that the Veteran’s symptoms result in occupational and social impairment, with deficiencies in most areas. See id. In so concluding, the Board finds particularly persuasive the psychologist’s medical statement and the lay statements of record; the medical treatment notes are sporadic due to the Veteran’s inability to attend appointments regularly and therefore have minimum probative value. The probative evidence of record notes symptoms of anxiety, panic attacks, depression, frequent nightmares, anger, and irritability. Therefore, the Board finds that a rating of 70 percent for the Veteran’s service-connected PTSD is warranted for the period on appeal. 38 C.F.R. § 4.130, DC 9411. A higher rating of 100 percent is not warranted for the period on appeal because the Veteran has not displayed symptoms of gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss. The Board notes that there is evidence in the record indicating that the Veteran harmed himself and had been abusive to his wife in the past; additionally, the Veteran has claimed that he has suicidal ideation. However, these occurrences do not rise to the level of frequency warranting a higher disability rating. Therefore, the Veteran’s disability picture more closely reflects that of a 70 percent disability rating for the period on appeal. The record does not indicate that that the Veteran has experienced all of the symptoms associated with a 70 percent rating for his PTSD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment sufficient to warrant a 70 percent rating even though all of the specific symptoms listed for this evaluation are not manifested. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel