Citation Nr: 18159941 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 18-45 823 DATE: December 20, 2018 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. A rating of 50 percent, but no higher, for an unspecified anxiety disorder with a depressive disorder (depression) is granted. An earlier effective date for depression is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD that was incurred in and due to military sexual trauma (MST) suffered while in service. 2. The Veteran’s depression and PTSD is manifested by occupational and social impairment with reduced reliability and productivity. 3. The evidence does not indicate the Veteran filed a claim for a psychiatric disorder prior to April 18, 2014. 4. The Veteran’s service connected disabilities do not render her unemployable. CONCLUSIONS OF LAW 1. The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an increased rating for depression with PTSD to 50 percent have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9434. 3. The criteria for an effective date prior to April 18, 2014 for the award of service-connected depression have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 4. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1983 to March 1991. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Establishment of service connection for PTSD in particular requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). When a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran’s service records may corroborate the Veteran’s account of the stressor incident. 38 C.F.R. § 3.304(f)(5); see also Patton v. West, 12 Vet. App. 272, 277 (1999). Examples of such evidence include, but are not limited to: records from law enforcement authorities; rape crisis centers; mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. 38 C.F.R. § 3.304(f)(5). Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Id. The Veteran has been diagnosed with PTSD. The Veteran’s service treatment records (STRs) do not show mention of treatment for sexual trauma while in service. However, the Veteran’s STRs show the Veteran was seen in service for her mental health. The Veteran’s military personnel records also show she did go to radioman school, which the Veteran had said she did to get out of her situation where she was assaulted. Additionally, the Board finds the Veteran’s account of her MST to be both competent and credible. A July 2018 examiner opined the Veteran had PTSD that was at least as likely as not due to her MST. The examiner opined the Veteran’s symptoms led to severe occupational and social impairment with deficiencies in most areas. Therefore, based on the above evidence, the claim will be granted. It is important for the Veteran to understand that this finding does not necessarily provide a basis for additional compensation, as the Veteran is already service-connected for her psychiatric disability and there is no indication in this record that the RO ever attempted to distinguish between the Veteran service-connected and nonservice connects psychiatric problems. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. See Fenderson, 12 Vet. App. 119 (1999). The Veteran’s depression is currently rated as 30 percent disabling under DC 9434. Under DC 9434 (PTSD is evaluated under the same criteria), a 30 percent evaluation for depression requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. A 50 percent evaluation for depression requires 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 and social relationships. A 70 percent rating is prescribed when there is evidence of 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); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran was in receipt of the highest evaluation possible until May 1, 2014 based on hospitalization. From May 1, 2014, the Veteran is in receipt of a 30 percent disability rating. The Veteran contends her depression is worse than indicated by her 30 percent disability rating. The Veteran was seen for her depression and anxiety throughout 2001 and 2002. The Veteran reported periods of depression and anxiety related to her family situation, periods of improvement regarding her self-esteem, and hope about her job. During these visits, the Veteran denied hallucinations, delusions, paranoid thinking, suicidal or homicidal ideations. Medical records from 2013 show the Veteran was taking medication for her depression and anxiety, but still experienced occasional anxiety attacks. (See May 2013 medical record.) A September 2013 medical record showed the Veteran was having difficulty finding work due to her physical and mental conditions and was still suffering from sleep problems. A November 2013 medical record showed the Veteran had severe depression. The Veteran was afforded an examination for her depression and anxiety in May 2015. The Veteran reported trouble sleeping, depressed mood, hypervigilance, avoidant behavior, isolating behavior, irritability, and feeling jumpy. The Veteran said she would have night terrors, but took medication to manage them. In August 2016, an examiner noted the Veteran’s memory was intact, thought processes were linear, the Veteran did not have delusional thinking, no perceptual disturbances, and had no suicidal or homicidal ideations. The Veteran’s mood was depressed. The Veteran continued to seek treatment for her depression and anxiety in 2017. In January 2017, an examiner noted the Veteran’s speech was normal, she had good insight and judgement, had no delusional thinking, no perceptual disturbances, and no suicidal ideations. A July 2018 examiner opined the Veteran suffered from severe symptoms of guilt, loss of interest, and problems sleeping. The examiner opined the Veteran suffered from moderate symptoms such as past failure, self-dislike, self-criticalness, worthlessness, loss of energy, and changes in appetite. The examiner opined the Veteran had mild symptoms of sadness, pessimism, loss of pleasure, punishment feelings, agitation, indecisiveness, tiredness, and fatigue. It is important for the Veteran to understand that indications of a “moderate” or “mild” problem provide some evidence against this claim. In June and October 2018 medical visits, the Veteran also reported symptoms of trouble concentration and agitation but did not report thoughts of hurting herself. The Veteran reported her depressive symptoms made it difficult for her to work, take care of things at home, and to get along with others. The Veteran also reported her anxiety caused her nervousness, excessive worry, trouble relaxing, and irritability. The Board finds the Veteran’s symptoms more approximate those warranting a 50 percent disability rating. The Veteran has sleep disturbances, trouble establishing and maintaining work and social relationships. The Veteran also suffers from loss of energy and appetite, suffers from anxiety attacks, and disturbances of motivation. The Board finds a higher 70 percent rating is not warranted. The Veteran’s record does not show she experiences symptoms as, for example only, approximating obsessional rituals, intermittently illogical speech, near-continuous panic attacks, impaired impulse control, spatial disorientation, neglect of appearance and hygiene, or suicidal ideations due to her depression and anxiety. Regarding the above, the Board acknowledges the Veteran’s statements that her depression and anxiety cause her problems, including trouble sleeping, irritability, trouble interacting with people, and anxiety attacks. The Board also acknowledges the Veteran believes her symptoms to be worse than evidenced by her current disability ratings. However, while the Veteran is competent to report her symptoms, she is not competent to opine on matters requiring medical knowledge, such as determining the extent and severity of her depression and anxiety. Therefore, the Board places greater probative weight on the objective evidence of record. The medical evidence does not support a rating higher than 50 percent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). While the Veteran’s depression and anxiety clearly do bother her a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If her depression and anxiety did not cause her problems, there would be no basis for compensable ratings, or the increased rating, the only question is the degree. Neither the Veteran nor her representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that while the Veteran is now service connected for two psychiatric disorders, her PTSD and her depression, the Veteran will not receive additional compensation for her PTSD. This is because the Veteran is already service connected and receiving compensation for her depression, which is evaluated under the same diagnostic criteria as PTSD. All of the problems the Veteran has with both disorders have been considered in this case. Earlier Effective Date In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. With regard to the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a “facts found” basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before they actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The Veteran contends her effective date for his award of service connection for her depression should be prior to April 18, 2014. The Board notes the Veteran had been seeking treatment for her depression prior to the date of her claim. However, while VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed, a treatment record is not a basis upon which an earlier effective date for service connection may be awarded. 38 C.F.R. § 3.157. Simply stated, the fact that the Veteran is getting treatment for a disability at a VA Medical Center does not always mean that the Veteran believes this disability is related to service. The Veteran is currently in receipt of the earliest effective date legally available. The record does not show the Veteran filed either a formal claim or an informal claim for PTSD prior to April 18, 2014. The Veteran separated from service in March 1991 and her claim was not received within one year of her separation from service. Therefore, since the Veteran is currently rated for her disability to the date of her present claim and since that claim was not received within one year after separation from service, an earlier effective date is not available and the claim will be denied. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the claim must be denied. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). TDIU The law provides that a total disability rating may be assigned where the schedular rating is less than total when the disabled person is 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 at 60 percent or more, or 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. See 38 C.F.R. § 4.16(a) (2016). The Veteran’s total combined disability rating was 30 percent disabling as of May 1, 2014. Even with the Veteran’s newly increased rating to 50 percent for her depression and her newly service connected PTSD, the Veteran still does not meet the schedular requirements for a TDIU. Because, the Veteran does not meet the schedular requirement for TDIU under 38 C.F.R. § 4.16(a), the claim will be denied. The Board finds no other basis to award the Veteran TDIU: A detailed review of the record fails to indicate any form of problem that would provide a basis for an extra-schedular determination. The Veteran’s condition has been evaluated in detail. Her condition, while serious, is fully addressed at the present time within the current evaluation. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel