Citation Nr: 18158653 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 17-06 682 DATE: December 17, 2018 ORDER Entitlement to an effective date prior to August 24, 2016 for a 70 percent rating for posttraumatic stress disorder (PTSD) is denied. FINDING OF FACT While the Veteran’s increased rating claim predated August 24, 2016, mental health findings that met the criteria for a 70 percent rating for PTSD were not shown in the record prior to that date, and entitlement to that benefit was not demonstrated. CONCLUSION OF LAW The criteria for an effective date prior to August 24, 2016 for a 70 percent rating for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1971 to August 1973. This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2016 rating decision of the VA Regional Office (RO) in Houston, Texas. Generally, the effective date of an award based on an original claim, a claim reopened after a final disallowance, or a claim for increase, will 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. An exception to this rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. 38 C.F.R. § 3.400(o)(2). In that regard, the law provides that the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the application is received within one year from such date. Id. The Board will therefore begin its analysis by focusing on the date of claim. This matter has a complicated procedural history. The Veteran was granted service connection for PTSD in April 2009 and assigned a 50 percent rating, effective February 2009, the date of his initial claim. The Veteran subsequently filed an informal claim for an increased rating in correspondence, received by the RO on August 27, 2013. The increased rating claim was denied by the RO in a March 2014 rating decision. In an October 2014 Statement in Support of Claim, the Veteran asserted that his PTSD symptoms were worsening. The Veteran was afforded another VA PTSD examination. The claim was again denied by the RO in a February 2015 rating decision. The Veteran filed a Notice of Disagreement (NOD) in March 2015 appealing that decision. In August 2015 the Veteran filed a new increased rating claim for his PTSD. In March 2016, the Veteran, after consulting with his appointed representative, withdrew his March 2015 NOD and requested VA to act on his August 2015 claim. The Veteran filed an increased rating claim in August 2016 to “jump start” consideration of the August 2015 claim. Given this very complicated history, and the intent throughout to obtain a rating in excess of 50 percent, the Board finds that this matter has been continuously pursued since August 27, 2013 and considers August 27, 2013 to be the date of claim for purposes of the present appeal The remaining question for the Board is the date entitlement to a 70 percent evaluation for PTSD arose, and in that regard the Board has focused on evidence dated from August 27, 2012 (the date one year prior to the date of claim) until the August 24, 2016 effective date currently assigned for the 70 percent rating. In this regard, disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes (DC) identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under the General Rating Formula for mental disorders, a 50 percent evaluation is contemplated where 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent evaluation is warranted where there is 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. Evaluations under 38 C.F.R. § 4.130 are “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed in DC 9414 are not intended to constitute an exhaustive list, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas”-i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. When evaluating the level of disability arising from a mental disorder, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. See 38 C.F.R. § 4.126(a). However, the rating agency shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Turning next to the relevant evidence dated from the period beginning August 27, 2012, in the March 2014 Review PTSD Disability Benefits Questionnaire (DBQ), the Veteran’s PTSD diagnosis was continued, and a diagnosis of other specified depressive disorder: recurrent brief depression was added. The examination report notes the following symptomatology: depressed mood, anxiety, suspiciousness, chronic sleep impairment and mild memory loss. The examiner noted the Veteran suffers “guilt with re-experiencing the trauma, increased arousal and reactivity, avoidance symptoms, and negative alterations in mood and cognition.” The examiner opined that the Veteran suffers occupational and social impairment with reduced reliability and productivity. Based on the report of this evaluation, the Veteran’s claim for a rating increase was denied by the RO in March 2014 and the rating of 50 percent was continued. In his October 2014 statement, the Veteran asserted that his PTSD symptomatology was worsening. The Veteran’s February 2015 Review Post Traumatic Stress Disorder (PTSD) DBQ notes the following symptomatology: depressed mood, anxiety, suspiciousness, chronic sleep impairment and mild memory loss. The examiner opined that the Veteran suffers 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. Based on the report of this evaluation, the Veteran’s claim for a rating increase was again denied by the RO in the February 2015 rating decision. The rating of 50 percent was continued. After filing the August 24, 2016 increased rating claim, the Veteran underwent a third Review Post Traumatic Stress Disorder (PTSD) DBQ in October 2016. The examination report notes worsening symptomatology including: depressed mood, anxiety, suspiciousness, chronic sleep impairment and mild memory loss, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control including periods of violence, and neglect of personal appearance and hygiene. The examiner opined that the Veteran suffers occupational and social impairment with deficiencies in most areas. Based on the report of this evaluation, the Veteran’s claim for a rating increase was granted by the RO and a rating of 70 percent was assigned in the October 2016 rating decision, effective August 24, 2016. The Board finds that the examination results reveal that the Veteran’s symptomatology did not worsen until the October 2016 DBQ. A review of the evidence dated from the period from August 27, 2012 until August 24, 2016, the most relevant portions of which are summarized above, certainly reveals significant PTSD symptoms, but the Board finds that those symptoms were entirely contemplated by the then-assigned 50 percent rating. There was no indication of the symptoms enumerated in the criteria for a 70 percent evaluation, nor was there any suggestion of a degree of social and occupational impairment inconsistent with a 50 percent evaluation. By contrast, the October 2016 report clearly demonstrated impaired impulse control, neglect of personal appearance and hygiene, and – significantly - occupational and social impairment with deficiencies in most areas. These findings are fully consistent with a 70 percent evaluation, and formed a basis for that current evaluation. That said, there remains no indication that those symptoms were manifest prior to August 24, 2016. In summary, the Veteran’s current claim has been found to have been received prior to August 24, 2016, but entitlement to a 70 percent evaluation, as reflected in the clinical and examination findings of record, was not shown prior to that date. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to August 24, 2016 for a 70 percent rating for PTSD, and that claim must be denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Banks, Associate Counsel