Citation Nr: 18158985 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-04 265A DATE: December 18, 2018 ORDER Entitlement to an earlier effective date of November 14, 1990, for the establishment of service connection for a disability characterized as other specified trauma and stressor-related disorder, adjustment-like disorders, is granted. Entitlement to an initial rating higher than 30 percent for other specified traumatic and stressor-related disorder, adjustment-like disorder, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, and sympathetically reviewing the record, VA first received the Veteran’s claim for an acquired psychiatric disorder on November 14, 1990. 2. Throughout the entire appeal period, the Veteran’s depression resulted in depressed mood, anxiety, and chronic sleep impairment, which was productive of no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. The Veteran’s service-connected disability does not meet the schedular criteria for a TDIU; his service-connected disability does not prevent him from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of November 14, 1990, for service connection for a disability characterized as other specified trauma and stressor-related disorder, adjustment-like disorders, have been met. 38 U.S.C. § 5010 (2012); 38 C.F.R. § 3.3400 (2018). 2. The criteria for entitlement to an initial rating higher than 30 percent for other specified traumatic and stressor-related disorder, adjustment-like disorder, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.130, Diagnostic Code 9343 (2018). 3. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disability have not been met. 38 U.S.C.§ 1155 (2012); 38 C.F.R. § 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1968 to December 1971. He testified before a Veterans Law Judge (VLJ) as to the issues of service connection for a psychiatric disability other than PTSD that arose from a Court of Appeals for Veterans Claims remand in 2010, as well as a claim for service connection for PTSD that arose from a January 2007 rating action. Since that time, the Veteran has been granted service connection for a psychiatric disorder other than PTSD; and by a December 2015 decision, the Board declined to reopen the Veteran’s claim for entitlement to service connection for PTSD. As the issues that were discussed at the hearing have been resolved, the issues currently under appeal need not be adjudicated by the VLJ who conducted the February 2014 hearing. In addition, the Board recognizes that there is a separate appeal pending regarding whether it was proper to adjust VA compensation benefits from May 2, 2007, to March 18, 2010, based on incarceration of the Veteran. The Veteran filed his VA Form 9 in October 2017 and the issue was certified to the Board in February 2018 as to that issue. That matter will be addressed in a separate Board decision. 1. Entitlement to an effective date earlier than July 16, 1992, for the establishment of service connection for a disability characterized as “other specified trauma and stressor-related disorder, adjustment-like disorders.” Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a). With regard to “a claim,” the applicable regulations have changed. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Prior to the changes, a “claim” is defined broadly to include 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) (2014); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a) (2018). The essential elements for any claim, whether formal or informal, are “(1) [] intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Board is aware of the revision to 38 C.F.R. § 3.155 and the elimination of 38 C.F.R. § 3.157, however, the restrictive changes shall not be applied retroactively and are therefore inapplicable in this case. The Board must review all communications in the record that may be interpreted as formal or informal claims and consider whether such communications, in the context of the entire record, reasonably raise a claim for benefits. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Moreover, in identifying the benefit sought, the Veterans Court has stated that although the “RO has no duty to read the mind of the claimant, the RO should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing the claim.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Thus, the RO must consider claims that may be “reasonably encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or the Secretary obtains in support of the claim.” Id. Here, as noted by the RO, correspondence sent to the Veteran’s congressional representative was forwarded to VA and received July 16, 1992. The RO accepted this as a claim for compensation benefits for a mental health condition. As a result, the RO awarded the Veteran service-connection for his other specified traumatic and stressor-related disorder from that date. This is the same date the Veteran was awarded service-connected for his PTSD, which has now been severed. However, as noted in the May 2003 Supplemental Statement of the Case (SSOC), whereby the Veteran sought an earlier effective date for his then-grant of service connection for PTSD, the Veteran filed a statement dated October 30, 1990, (received by VA on November 14, 1990) which clearly states that he was being treated for manic depression. Although the Veteran did state that he began being treated for this psychiatric disorder after his heart attack, and his heart disability is not service-connected, when liberally construing this document, the Board finds that this should have constituted an informal claim for disability benefits. Indeed, after submitting that statement, the Veteran also submitted additional medical evidence which showed he experienced increased anger and anxiety, suggesting that he believed he had filed a claim for a psychiatric disorder. As such, when resolving all reasonable doubt in his favor, and sympathetically and liberally reading the Veteran’s statement, the Board finds that an effective date of November 14, 1990, the date the Veteran’s statement was received by VA, is the more appropriate effective date for the grant of the Veteran’s claim for service-connection for a disability characterized as “other specified trauma and stressor-related disorder, adjustment-like disorders”. There is nothing in the evidence to suggest an effective date earlier than November 14, 1990. 2. Entitlement to an initial rating higher than 30 percent for other specified traumatic and stressor-related disorder, adjustment-like disorder. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2018). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency 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. The Veteran’s depression and PTSD are currently rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. Under that code, a 30 percent disability rating is in order when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned when 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. Id. A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where there is evidence of total occupational and social impairment due to 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; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. The “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, “[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous.” Id. The Court went on to state that the list of examples “provides guidance as to the severity of symptoms contemplated for each rating.” Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. When considering all the evidence of record, the Board finds that at no point during the appeal period did the Veteran’s other specified traumatic and stressor-related disorder, adjustment-like disorder, warrant a rating higher than 30 percent. The Board acknowledges that the Veteran was previously granted a 100 percent rating for his PTSD; however, when considering the symptoms attributable to his other acquired psychiatric disability only, the Board finds that a higher rating is not warranted. It is important to note that the Veteran has been diagnosed with various acquired psychiatric disorders throughout the appeal period. Indeed, as previously noted, the Veteran was service-connected for PTSD rated as 100 percent disabling. The only evidence of record that specifically addresses the symptoms associated with the Veteran’s service-connected other specified trauma and stressor-related disorder is a May 2015 VA examination report. This report shows that the VA examiner could differentiate the Veteran’s symptoms for his service-connected disability from his other acquired psychiatric disorders, namely, his PTSD. Indeed, the examiner stated that the Veteran had two separate diagnoses based on distinct etiologies and there was no clinical association between the Veteran’s PTSD and his specified trauma- and stressor-related disorder, adjustment-like disorder. The examiner opined that this disability was best summarized as causing 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; and that “the major portion of the indicated level of occupational and social impairment is attributable to PTSD, as that diagnosis involves considerably greater number and magnitude of symptoms.” As for his service-connected disability, he had symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. At the time of examination, he initially presented as irritable, but soon after and for the remainder of the interview was friendly, cooperative, and talkative. He presented with his wife of 33 years. He was oriented to person, place, time, and purpose. His motor activity was calm, and his speech was normal in tone, calm in rate, clear in quality, and logical in direction; with no neologisms, echolalia, or perseverations. There was no evidence of hallucinations; no affective flattening, alogia, or avolition observed; there was no evidence of a formal thought disorder. His predominant mood was depressed and his mood at the time of the examination was mildly irritable; though appropriate in relation to context. His affective expression was stable. Essentially, the evidence shows that throughout the appeal period, the Veteran has maintained a marriage to his wife of 33 years, a relationship with his two children who reside fairly close to he and his wife, and continues to have interests such as going fishing once in a while, working on his garden, and playing computer games. On examination, the examiner attributed the Veteran’s difficulty in establishing and maintaining effective work and social relationships to his PTSD, but then checked that symptom as also being attributable to his service-connected disability. Even assuming that this symptom is attributable to the Veteran’s service-connected disability, to warrant a higher rating, the evidence must show that this symptom, along with all of his other symptoms, are productive of occupational and social impairment with reduced reliability and productivity. Here, the Veteran has not been employed for several years, but he maintains a long marriage and relationship with his two children. In addition, when asked, he denied a persistent inability to experience pleasant emotions like happiness, satisfaction, or loving feelings. Even when considering these symptoms, the VA examiner determined that the Veteran’s service-connected acquired psychiatric disability most closely approximated 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. The Board affords much probative weight to this opinion as it was based on a review of the Veteran’s claims file and on the Veteran’s own description of his acquired psychiatric disorders. Given that the Veteran has not demonstrated any symptom of the type and severity contemplated by the 50 percent rating and because he has been able to maintain a relationship with his wife and children, the Board finds that a rating higher than 30 percent for his service-connected acquired psychiatric disability is not warranted. The Board again reiterates that the Veteran does have a separate diagnosis of PTSD that is productive of more serious symptomatology; however, because the examiner was able to differentiate which symptoms were attributable to each diagnosis, the Board will not consider those symptoms in assigning a rating. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability. The Veteran is seeking a total disability rating based on individual unemployability (TDIU). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. In this instance, the Veteran is only service-connected for one disability – otherwise specified trauma and stressor-related disorder, adjustment-like disorders, rated as 30 percent disabling for the entire appeal period. Therefore, he does not meet the schedular criteria for a TDIU. Regardless, although the Veteran does not meet the schedular criteria for a TDIU, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director, Compensation Service (Director) for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b). On his December 2015 Application for Increased Compensation Based on Unemployability, the Veteran reported that he had not worked since 1990. He was last self-employed doing welding work. He contended that his psychiatric disorders prevented him from securing and following any substantially gainful employment. When considering all the evidence of record, however, the Board finds that the weight of the most probative evidence does not establish that the Veteran’s service-connected disability prevented him from securing or maintaining substantially gainful employment. Here, it is again worth noting that the Veteran does have a diagnosis of PTSD. As stated in the May 2015 VA examination, the symptoms attributable to his non-service connected PTSD include: panic attacks, recurrent, involuntary, and intrusive memories; traumatic nightmares; intense or prolonged distress after exposure to traumatic reminders; trauma-related external reminders; persistent negative beliefs and expectations about oneself or the world; persistent negative trauma-related emotions; markedly diminished interest in significant activities; feeling alienated from others; hypervigilance; exaggerated startle response; and problems in concentration and sleep. The symptoms attributed to the Veteran’s service-connected psychiatric disability were: anxiety, depressed mood, and chronic sleep impairment. The examiner specifically found that the Veteran’s service-connected acquired psychiatric disorder caused, at worst, occupational and social impairment with decrease in work efficiency. Although it is ultimately the duty of the Board, as a fact-finder, to determine the issue of unemployability, the Board finds it highly probative that the Veteran’s symptoms have been determined to be of such a nature to only cause occasional decrease in work efficiency. Essentially, the evidence does not show that the Veteran has any service-connected disabilities that would cause physical limitations and in addition, his only service-connected disability would merely cause an occasional decrease in work efficiency. As such, the Board finds that the evidence does not show that the Veteran’s service-connected disability would render him unable to secure or maintain substantially gainful employment. The Board cannot consider the Veteran’s PTSD symptoms in rendering a decision on the issue of TDIU. As such, entitlement to TDIU is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Martha R. Luboch, Associate Counsel