Citation Nr: 18161215 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 16-46 851 DATE: December 31, 2018 ORDER A rating higher than 70 percent for post-traumatic stress disorder (PTSD) is denied. An effective date of April 6, 2011, and no earlier, for the grant of service connection for PTSD is granted. FINDINGS OF FACT 1. PTSD is not more nearly manifested by symptoms productive of total occupational and social impairment. 2. VA received an original claim for compensation on April 6, 2011; prior thereto, there was no informal or formal claim, or written intent to file a claim, of entitlement to service connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.126, Diagnostic Code 9411. 2. The criteria for an effective date of April 6, 2011, and no earlier, for the grant of service connection for PTSD are met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.156, 3.400(q)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to February 1971. This case comes before the Board of Veteran’s Appeals (Board) on appeal of an November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for PTSD effective November 5, 2012. 1. Entitlement to a rating higher than 70 percent for PTSD The Veteran seeks a rating higher than 70 percent for PTSD although he has not set forth any specific contentions as to why he believes a higher rating is warranted. The Board concludes that the preponderance of the evidence is against a rating higher than 70 percent for PTSD. Neither the lay nor the medical evidence more nearly reflects total occupational and social impairment. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. All mental disorders, Diagnostic Codes 9201 through 9440, are evaluated pursuant to the General Rating Formula for Mental Disorders set out at 38 C.F.R. § 4.130. 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 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. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126(b). In a November 2013 rating decision, the RO granted service connection for PTSD and assigned a 70 percent evaluation (effective November 5, 2012) under 38 C.F.R. § 4.130, Diagnostic Code 9411. VA treatment records from April and August 2011 note irritability, moderate anxiety, disturbing memories, flashbacks, dysphoric moods, constricted affect, a history of panic attacks, and fair insight and judgment. The Veteran was diagnosed with PTSD related to his experiences in Vietnam. Significant marital and relational issues were noted. See CAPRI (July 2012). An April 2012 VA examination reflects symptoms of depressed mood, anxiety, chronic sleep impairment, nightmares, and constant worry. The Veteran reported difficulty transitioning to retirement and spent most of his time watching television and doing things around the house. He had been married for 29 years, maintained communication with his biological children, and considered his stepson to be his son. The examiner diagnosed anxiety disorder not otherwise specified (NOS) manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. VA treatment records from June 2013 document improved sleep, although nightmares continued, along with mild irritability and depression with poor interest. The Veteran reported enjoying some things when he tried them. He was diagnosed with recurrent major depressive disorder and moderate PTSD with chronic features. A November 2013 VA examination reflects symptoms of anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing relationships, difficulty adapting to stressful situations, impaired impulse control, and intermittent inability to perform activities of daily living. The Veteran reported that sleep difficulties remained as did irritability, and difficulties in his relationships with his children. The examiner opined that anxiety disorder had increased and was best represented by a diagnosis of PTSD. A February 2016 PTSD DBQ by a private physician documented symptoms of depression, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances in motivation and mood, difficulty establishing and maintaining relationships, difficulty in stressful situations, and persistent delusions or hallucinations. The Veteran was found to have occupational and social impairment with deficiencies in most areas. In an attached report, the physician stated that on the day of the examination the Veteran reported passive suicidal ideation, auditory hallucinations in which he thought his spouse was speaking to him but was not, and social isolation. He had been married for 31 years and lived with his wife, son, and son’s fiancée. A July 2017 VA examination reported no lessening in the Veteran’s PTSD symptoms which resulted in occupational and social impairment with reduced reliability and productivity. The Veteran reported depression, nightmares, anxiety, difficulty sleeping, issues with short term memory, and difficulty being in a crowd. The exam reflects symptoms of depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty adapting to stressful situations, and intermittent inability to perform activities of daily living. Objectively, the Veteran was cooperative with orientation intact but concentration and memory were poor. The Veteran was found to have occupational and social impairment with reduced reliability productivity. Throughout the entire period on appeal the Veteran has received a 70 percent evaluation for PTSD. The Board does not find that a higher rating is warranted. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In this case, neither the lay nor the medical evidence more nearly reflect severity, frequency, and duration of symptoms contemplated by the next higher evaluation. Although the Veteran has depression, he does not have near continuous depression affecting his ability to function independently, appropriately, and effectively. There are no concrete suicidal plans or past attempts. Although the Veteran has anxiety, he does not have near continuous anxiety affecting his ability to function independently, appropriately, and effectively. The Veteran’s mood disorder and other symptoms are shown to cause intermittent, not constant or continuous, disturbances of motivation that prevent him from performing activities of daily living. The Veteran has been without impairment of thought, communication or speech due to his symptoms. Although passive suicidal thoughts were noted, he has never been noted as a persistent danger to either himself or others. Additionally, no mental health professional who has examined the Veteran during the appeal period has concluded that his symptoms more nearly reflect total occupational and social impairment; and the Veteran has not explained why he believes some or all of symptoms are productive of total occupational and social impairment. Given this, the Board assigns greater probative value to the medical evidence as this was prepared by skilled, neutral medical professionals after evaluating the Veteran and review of the record. The Veteran has not presented a medical opinion that PTSD is productive of total occupational and social impairment to weigh in the matter and he has not provided lay evidence that tends to show total occupational and social impairment. Overall, the Board finds that the disability picture presented does not more nearly approximate total occupational and social impairment, which is required for the next higher rating under 38 C.F.R. § 4.130, Diagnostic Code 9411. There is no basis for a staged rating. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, the claim is denied. There is no doubt to resolve. 2. Entitlement to an effective date earlier than November 5, 2012, for the grant of service connection for PTSD. The Veteran contends that that an effective date earlier than November 5, 2012, for the grant of service connection for PTSD is warranted. The Board concludes that the evidence supports the assignment of an effective date of April 6, 2011 for the grant of service connection for PTSD. Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on 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. However, an award based on receipt of new and material evidence, other than service treatment records (STRs), received within the appeal period, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). On April 6, 2011, VA received a claim for service connection for PTSD. See VA Form 21-0820 (April 6, 2011). At this time, the Veteran noted he was being treated for PTSD. An April 2012 VA PTSD examination reflects that the Veteran did not meet the criteria for a diagnosis of PTSD and, instead, diagnosed him with an anxiety disorder. A September 2012 rating decision denied the claim of entitlement to service connection for PTSD because the record lacked a confirmed PTSD diagnosis. A September 2012 letter notified the Veteran of this decision and how to appeal. Prior to expiration of the appeal period, on November 2, 2012, the Veteran submitted VA treatment records from October 2012 showing treatment for mental health symptoms. These records included diagnoses for major depressive disorder, rule out bipolar disorder, and PTSD. Additionally, VA treatment records from the Phoenix VA Medical Center dated March 17, 2011 through July 30, 2012 and noted in the original denial contain April 2011 and August 2011 diagnoses of PTSD due to the Veteran’s service in Vietnam. A November 5, 2012, statement from the Veteran reflects a request for reconsideration of his denied PTSD claim. Thereafter, the originating agency conducted additional development showing a verified stressor event and, per a November 2013 VA PTSD examination, a confirmed diagnosis of PTSD. A November 2013 rating decision granted service connection for PTSD—and assigned an effective date of November 5, 2012 (the date of the Veteran’s request for reconsideration). The Board finds that, because essentially new and material evidence was received prior to the expiration of the appeal period for the September 2012 rating decision, the September 2012 rating decision did not become final. Since the September 2012 rating decision was not final, the date of claim is April 6, 2011. Further, the Board believes that the evidence of record establishes that the Veteran had PTSD on or before this date. Therefore, April 6, 2011 is the later of the dates when considering the date of receipt of the claim and the date entitlement arose. U.S.C.§ 5110(a); 38 C.F.R. § 3.400. An effective date earlier than April 6, 2011 is not warranted because there is no informal or formal claim, or written intent to file a claim, for service connection for PTSD prior to this date. (Continued on the next page)   Accordingly, an effective date of April 6, 2011, for the grant of service connection for PTSD is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. E., Associate Counsel