Citation Nr: 1808037 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-21 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 30 percent for post-traumatic stress disorder (PTSD) for the period prior to February 11, 2012. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to February 11, 2012. 3. Entitlement to an effective date prior to July 31, 2008 for the award of service connection for PTSD. REPRESENTATION Veteran represented by: Todd Hammond, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1969 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In June 2017, a videoconference hearing was held and the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's claims file. After a review of the record, the Board finds that the appeal period for the claims currently before it begins on July 31, 2008-the date on which the Veteran filed his service-connection claim for PTSD. This claim was denied in an October 2008 rating decision with which the Veteran timely filed a notice of disagreement in September 2009. Service connection was granted in a February 2010 rating decision and the Veteran timely disagreed with the rating and the effective date in May 2010. See May 2010 Statement in Support of Claim. In a February 2011 statement, the Veteran's representative communicated that the Veteran wished to drop his appeal, see February 2011 Statement in Support of Claim, but the Veteran informed VA that the withdrawal was made in error and he rescinded that withdrawal in April 2011. See April 2011 Report of General Information. In a March 2012 rating decision, the Veteran was granted a 100 percent rating, effective February 11, 2012. The Veteran timely disagreed with the effective date of the award in the April 2012 notice of disagreement. Accordingly, the appeal period for the claims currently before the Board begins on July 31, 2008. Regarding the Veteran's TDIU claim, the Board acknowledges that the Veteran is in receipt of a 100 percent schedular rating for PTSD, effective February 11, 2012. The assignment of a total schedular rating does not categorically render a TDIU claim moot. See Bradley v. Peake, 22 Vet. App. 280 (2008). (VA must consider a TDIU claim despite the existence of a schedular total rating and award special monthly compensation (SMC) under 38 U.S.C. § 1114(s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating). However, the Veteran has not contended that his other service-connected disabilities (right ear hearing loss and tinnitus) preclude him from securing substantially gainful employment and, excluding the Veteran's 100 percent rating for PTSD, do not meet the percentage threshold for TDIU. Thus, it is not possible for a TDIU to be granted for his other service-connected disabilities, and a grant of TDIU based upon a 100 percent disability rating for PTSD would constitute impermissible "duplicate counting of disabilities." See id. Therefore, the Veteran's TDIU claim is rendered moot from February 11, 2012, at which time he was in receipt of a 100 percent disability rating for PTSD. FINDINGS OF FACT 1. For the period prior to February 11, 2012, the Veteran's PTSD was characterized by occupational and social impairment with deficiencies in most areas. 2. For the period prior to February 11, 2012, the Veteran was service-connected with several disabilities collectively rated at 70 percent, including PTSD rated at 70 percent. 3. For the period prior to February 11, 2012, the Veteran's PTSD precluded him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. 4. Service connection for PTSD was denied in an unappealed decision by the Board in May 2000. A request to reopen the claim was denied in an unappealed December 2006 rating decision. 5. The application to reopen the claim for service connection for PTSD was filed on July 31, 2008. CONCLUSIONS OF LAW 1. The criteria for a rating of 70 percent, but no higher, for PTSD for the period prior to February 11, 2012 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for entitlement to a TDIU for the period prior to February 11, 2012 have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). 3. The criteria for an effective date earlier than July 31, 2008 for service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. 3.1, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Increased Rating for PTSD Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999). In this case, the Veteran's disability has not significantly changed and a uniform evaluation is warranted. The Veteran's PTSD has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411. Under DC 9411, a noncompensable rating is assigned for a mental condition that has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned for 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). A 50 percent rating is assigned for 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. A 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for 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 to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran contends that he is entitled to an increased rating for his PTSD for the period prior to February 11, 2012 because the current assigned rating does not adequately represent the severity of his condition. The evidence demonstrates that the Veteran's PTSD was characterized by occupational and social impairment with deficiencies in most areas. The Veteran underwent a VA examination in November 2010 for his PTSD. He reported having good relationships with his children and being relatively active socially, however he also reported experiencing sleep impairment and suicidal thoughts without intent or plan. The Veteran's symptoms as demonstrated in his treatment records reflect a more severe disability picture. From September 2008 to March 2011, the Veteran regularly reported or exhibited irritability; isolation; lack of motivation; sleep impairment; suicidal thoughts without intent or plan; anxiety; depression; hopelessness; lack of energy; difficulty concentrating; occasional paranoia; anger; and, pressured speech. See May 2011 VA Treatment Records, pp. 9, 13, 27, 49, 52, 53; October 2010 Treatment Records, pp. 4, 7, 14, 18, 21, 25, 26, 38; January 2010 VA Treatment Records, pp. 4-7; December 2009 VA Treatment Records, pp. 27, 37; June 2009 VA Treatment Records, pp. 3-5; March 2009 VA Treatment Records, pp. 20, 30, 34; October 2008 VA Treatment Records, pp. 2-3. At the June 2017 videoconference hearing, the Veteran reported living on a boat small boat by himself during this time and stated that he would not leave the boat for three to four days at a time. June 2017 Hearing Transcript, p. 4. He also recalled experiencing constant anxiety and depression and noted issues with anger, irritability, sleep impairment, and impulse control as well as an inability to drive when he took certain medications for his PTSD. Id. at pp. 4, 5, 8, 11-13, 15. In light of the evidence, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran's disability picture for the period prior to February 11, 2012 more closely approximates the picture contemplated at the 70 percent rating. The Board finds, however, that the Veteran's symptomatology did not approximate that required for a 100 percent disability rating. Specifically, the evidence does not demonstrate 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; disorientation to time or place; or, memory loss for names of close relatives, own occupation, or own name, or symptoms of similar severity. However, the evidence demonstrates suicidal ideation; persistent depression and anxiety affecting the ability to function appropriately and effectively; impaired impulse control; difficulty in adapting to stressful circumstances; and, isolation. The Board finds that the severity of the symptoms most closely approximate those contemplated by a 70 percent disability rating for the period prior to February 11, 2012. Accordingly, the Board concludes that the weight of the evidence preponderates in favor of a finding of entitlement to a 70 percent rating, and no higher, for PTSD for the period prior to February 11, 2012. Entitlement to TDIU Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the period prior to February 11, 2012, the Veteran now meets the schedular rating requirement for a TDIU, see 38 C.F.R. § 4.16(a), as he has two or more disabilities, with at least one disability ratable at 40 percent (i.e., PTSD). The remaining (and dispositive) question is whether the service-connected disabilities render the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. The Veteran has contended that his service-connected disabilities prevent him from securing or following substantially gainful employment, and that he became too disabled to work around 2006. See September 2010 Veteran's Application for Increased Compensation Based on Unemployability. The Veteran completed two years of college but has no other formal education or training. He last worked for himself in the mortgage business but lost his business due to licensure issues. See January 2010 VA Treatment Records, p. 4. The Veteran maintains that he was unable to maintain employment prior to February 11, 2012 because his service-connected PTSD impacted his ability to work. The Veteran reported having been fired and laid off from past jobs because of problems getting along with people and an inability to handle stress due to his PTSD. See November 2010 SSA Records, pp. 79-80, 84. He also cited his chronic sleep impairment, sporadic attendance, and inability to complete tasks as obstacles to maintaining employment. See June 2017 Hearing Transcript, p. 21. The Veteran also reported that his medications for his PTSD cause "brain fog" and impact his ability to drive. Id. at pp. 11-12. The Veteran recalled learning to live with not making money because of his PTSD symptoms during his period of self-employment. Id. at p. 21. Further, as noted above, the Veteran's treatment records from the period prior to February 11, 2012 are replete with reports of suicidal ideation; irritability; impaired impulse control; isolation; anger; lack of energy, motivation and concentration; and, depression and anxiety. The Board finds that the impact of the Veteran's PTSD made it impossible for the Veteran to secure and maintain substantially gainful employment for the period prior to February 11, 2012. The Veteran's reported employment history consists of marginal self-employment, and work from which he has been terminated because of PTSD-related symptoms. Moreover, many of the symptoms that the Veteran has endorsed during this time would impact his ability to perform work in most occupational settings. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected PTSD, and an award of TDIU for the period prior to February 11, 2012 is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Earlier Effective Date for Award of Service Connection for PTSD In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall 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(b)(2)(i). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). VA shall construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is 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). Medical evidence alone cannot be an informal claim; there must be intent to apply for a benefit. Brannon, 12 Vet. App. at 35. VA's possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the filing date of the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999); see McGrath v. Gober, 14 Vet. App. 28 (2000). The Veteran was denied service connection for PTSD in an unappealed decision of the Board in May 2000, and a request to reopen the claim was denied in an unappealed December 2006 rating decision. The February 2010 rating decision which granted service connection for PTSD assigned an effective date of July 31, 2008, the date the Veteran submitted his request to reopen his service connection claim. The Veteran asserts that the effective date for service connection for PTSD should be earlier because he received a diagnosis for PTSD much earlier than July 31, 2008. However, the effective date of an award of service connection based on an application to reopen a claim is assigned based on the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2); Lalonde, 12 Vet. App. at 382. While sympathetic to the Veteran's belief that an earlier effective date is warranted; for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to July 31, 2008 for the grant of service connection for PTSD. Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than July 31, 2008, and the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b). An effective date prior to July 31, 2008 for the grant of service connection for PTSD is not warranted. ORDER For the period prior to February 11, 2012, an increased rating of 70 percent, and no higher, for PTSD is granted. Entitlement to a TDIU for the period prior to February 11, 2012 is granted. Entitlement to an effective date prior to July 31, 2008 for the award of service connection for PTSD is denied. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs