Citation Nr: 18158936 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-43 494 DATE: December 18, 2018 ORDER An evaluation higher than 70 percent for posttraumatic stress disorder (PTSD) with near continuous depression is denied. An effective date prior to January 31, 2011, for the grant of PTSD with near continuous depression is denied. REMANDED The request to reopen a previously denied claim for service connection for epilepsy, also claimed as seizures, is remanded. Service connection for lung cancer is remanded. Service connection for a right hip fracture is remanded. Service connection for a neck injury is remanded. Service connection for a back injury is remanded. Service connection for migraine headaches is remanded. Service connection for a vision condition is remanded. Service connection for non-Hodgkin’s lymphoma is remanded. FINDINGS OF FACTS 1. The Veteran’s PTSD symptoms have been manifested, at worst, by occupational and social impairment with deficiencies in most areas. 2. A September 2005 rating decision, which denied a claim for depression, became final as no new and material evidence or a Notice of Disagreement was received within one year of notice of the decision. The rating decision became final one year later. 3. A service connection claim for PTSD was filed on January 31, 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD with near continuous depression have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an effective date earlier than January 31, 2011 for service connection for PTSD with near continuous depression have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  1. An evaluation higher than 70 percent for PTSD with near continuous depression is denied. The Board has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim. Disability ratings are based on average impairment in earning capacity resulting from a particular disability and are determined by comparing symptoms shown with criteria in VA’s Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. PTSD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran is currently rated at 70 percent. The next highest rating is 100 percent. A 70 percent disability 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 work-like setting; inability to establish and maintain effective relationships.). A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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 symptoms associated with each evaluation under the General Rating Formula do not 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, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (4th ed. 1994) (DSM-IV). Id. at 443. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the “frequency, severity, and duration” of a veteran’s symptoms “play an important role” in determining the disability level). The severity of the symptoms and the degree of occupational and social impairment they cause are independent factors. See Vazquez-Claudio, 713 F.3d at 116 (rejecting an interpretation of § 4.130 that would allow “a veteran whose symptoms correspond[ed] exactly to a 30 percent rating” to be granted a 70-percent rating solely because they affected most areas). In other words, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See id. at 118 (holding that, in determining whether a 70 percent rating is warranted, VA must make “an initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas”) (emphasis added). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score. The GAF is a scale that reflects the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). The GAF score and interpretations of the score are important considerations in the rating of a psychiatric disability, though the GAF score assigned to a veteran is not dispositive of the severity of the veteran’s mental health disability. See Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). The GAF score must be considered in light of the actual symptoms manifested by the veteran’s disorder, which must provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Board notes that the GAF scale was removed from the more recent DSM-5 for several reasons, including its conceptual lack of clarity and questionable psychometrics in routine practice. See DSM-5, Introduction, The Multiaxial System (2013). VA implemented DSM-5, effective August 4, 2014, and determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Because the Veteran’s increased rating claim was originally certified to the Board in August 2015, the DSM-V is applicable to this case. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A July 2012 rating decision granted service connection for PTSD at 50 percent from January 31, 2011. A September 2015 rating decision subsequently increased the Veteran’s PTSD to 70 percent, effective January 31, 2011. A May 2012 VA examination diagnosed the Veteran with PTSD. The occupational and social impairment was found to be of reduced reliability and productivity. The examiner noted the Veteran appeared to be depressed and described some long-standing passive suicidal ideation with no suicidal plan or intent. The examiner determined the Veteran’s depressive symptoms were manifestations of his PTSD. His symptoms were found to include a depressed mood, anxiety, suspiciousness, near continuous anxiety and depression that affected his ability to function independently, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and periods of unprovoked irritability. The Veteran was found to be competent. On examination in October 2013, it was noted the Veteran suffered occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. It was noted the Veteran had been married for 23 years, and he and his spouse had six adult children, with two children living with them. The Veteran reported becoming easily angered, frustrated, verbally aggressive. His symptoms included a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, a flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, an inability to establish effective relationships, persistent delusions or hallucinations, and a neglect of personal appearance and hygiene. The Veteran also reported problems with his short- and long-term memory. On examination, his speech flow was found to be normal. Thought content was appropriate and goal-directed. There was a note of overt hallucinations. His mood was anxious and nervous, affect was restricted. It was found that the Veteran could manage his finances. The examiner noted the Veteran struggled with suicidal ideation, near continuous depression and anxiety, impaired personal control, and difficulty in adapting to stressful circumstances and found the Veteran struggled with severe impairment because of his inability to maintain effective relationships. The Veteran denied suicidal and homicidal ideation in December 2013 and was found to be a reliable, good historian. Insight, judgment, impulse control, and memory were found to be good. The Veteran was noted to be oriented in time, person, place, and circumstances. In July 2015, it was noted the Veteran was not suicidal. The same was noted in February 2015. A rating of 100 percent, the next level at which the Veteran could receive benefits, requires a showing of total occupational and social impairment. After thoroughly reviewing the evidence, as summarized above, the Board finds that an increased rating is not warranted because there is no evidence suggesting the Veteran suffers total occupational and social impairment due to his PTSD. Rather, the evidence indicates he consistently denied symptoms of a severity comparable to those listed as representing examples of the 100% disability rating. For example, he consistently denied suicidal or homicidal ideation and was found to be appropriately oriented, demonstrated appropriate goal-directed thought processes, and could manage his finances independently. The Veteran has also been married for 23 years. The record does reflect total social impairment due to the Veteran’s PTSD symptoms. The evidence establishes his PTSD symptoms include angry outbursts, aggressive behavior, a depressed mood, and an inability to maintain social relationships. However, he does maintain relationships with his family, including his wife and children. Based on the entirety of this record, the Veteran’s disability picture for his PTSD most closely approximates the 70 percent disability rating, because there is evidence of serious, but not total impairment. In summary, the Board finds the Veteran’s social and occupational impairment affects his ability to function appropriately and effectively, and thus, meets the criteria for a 70 percent rating. Regarding entitlement to a rating in excess of 70 percent (i.e., a 100 percent rating), there is not any probative evidence suggesting total social and occupational impairment. Thus, while he is significantly and seriously impaired by his psychiatric symptoms, the preponderance of the evidence is against finding that his impairment arises to the kind of gross impairment contemplated by a 100 percent rating. Consequently, the criteria for a rating in excess of 70 percent are not met. 2. An effective date prior to January 31, 2011, for the grant of PTSD with near continuous depression is denied. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. 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. But unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that “[a]ny communication or action, indicating an intention to apply for one or more benefits... [s]uch informal claim must identify the benefit sought.” 38 C.F.R. § 3.155 (a)(2014). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim, however, an informal claim must identify the benefit sought, be in writing, and request a determination of entitlement or evidence a belief in entitlement to a benefit. VA was 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). However, VA was not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In response to an informal claim, the VA was to send the claimant a formal application. If the formal application form was returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection “will be the date of the informal claim.” Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(a); 38 C.F.R. § 3.155). In the present case, the Veteran seeks entitlement to an effective date earlier than January 31, 2011 for the grant of service connection for PTSD. After a review of the claim file, the Board finds that an earlier effective date is not warranted. The Board has reviewed the record prior to January 31, 2011, for a claim or informal claim. The Board notes the Veteran submitted a claim in June 2005 for depression, but the claim was denied in a September 2005 rating decision. The Veteran was notified of the decision in September 28, 2005. The Veteran did not appeal. No other claim or informal claim is shown. Accordingly, the criteria for an earlier effective date of service connection for PTSD with near continuous depression have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS FOR REMAND 1. The request to reopen a previously denied claim for service connection for epilepsy, also claimed as seizures, is remanded. 2. Service connection for lung cancer is remanded. 3. Service connection for a right hip fracture is remanded. 4. Service connection for a neck injury is remanded. 5. Service connection for a back injury is remanded. 6. Service connection for migraine headaches is remanded. 7. Service connection for a vision condition is remanded. 8. Service connection for non-Hodgkin’s lymphoma is remanded. The Veteran’s claims file does not contain a complete record of the Veteran’s service treatment records. The Board observes the VA memo from October 2011 noting a formal finding on the unavailability of the Veteran’s service treatment records from the McDonald Army Health Center in Fort Eustis and the Sewell Point Branch Naval Medical Center in Norfolk, Virginia; however, it is unclear whether all efforts have been exhausted and any further efforts would be futile. VA has a duty to make as many attempts as necessary to obtain relevant records from a federal department or agency, including service medical records, until a determination is made that such records are unavailable or that any further attempts to obtain them would be futile. See 38 C.F.R. § 3.159(c)(2). Accordingly, as it is uncertain whether these particular STRs are in fact unavailable and whether further attempts to obtain the records would truly be futile, efforts should be taken upon remand to attempt to obtain the specified service treatment records. The matters are REMANDED for the following action: 1. Contact the service department and/or any other appropriate source (including National Personnel Records Center (NPRC), the Department of Defense (DOD), and the Joint Services Records Research Center (JSRRC)) and request all available service treatment records from the McDonald Army Health Center in Fort Eustis and the Sewell Point Branch Naval Medical Center in Norfolk, Virginia. If the records are unavailable, take all necessary steps to search alternate sources of records, including following the procedures outlined in VA adjudication manual rewrite, M21-1MR. If any service treatment records are unavailable, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. Shamil Patel Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs