Citation Nr: 1822073 Decision Date: 04/13/18 Archive Date: 04/25/18 DOCKET NO. 14-31 292 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a psychiatric disorder other than the service-connected PTSD with anxiety disorder 2. Entitlement to an increased evaluation for PTSD with anxiety disorder, currently evaluated as 30 percent disabling. 3. Entitlement to an effective date earlier than December 1, 2011 for an evaluation greater than 10 percent for PTSD with anxiety disorder. 4. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Sandra E. Booth, Attorney ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to November 2004. Service personnel records show was awarded the Combat Infantryman Badge, and that he served in Iraq from May 2003 to July 2004. These matters come before the Board of Veterans Appeals (Board) from November 2015 (psychiatric disorder other than PTSD with anxiety disorder (depression)) and April 2012 (PTSD) rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Board has recharacterized the Veteran's claim for service connection for depression as a claim for service connection for a psychiatric disorder other than PTSD with anxiety disorder to more accurately represent the intent of the Veteran's claim. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran has stated that his service-connected disabilities have disrupted his ability to obtain and maintain substantial employment. The record reflects that the Veteran has had a number of jobs since he entered VA care. He is now a student but expresses difficulty with concentration and memory. The Board thus accepts jurisdiction of the issue of entitlement to TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below, is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. A preponderance of the evidence does not show that the Veteran is has a psychiatric disorder other than the service-connected PTSD with anxiety disorder. 2. The service-connected PTSD with anxiety disorder is productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and no more. 3. VA treatment records reflect that on October 19, 2011 the increase in PTSD with anxiety disorder disability is factually ascertainable, which is within the one year period prior to the receipt of the Veteran's claim for an increased rating on December 1, 2011. CONCLUSIONS OF LAW 1. The criteria for service connection for a psychiatric disorder other than the service-connected PTSD with anxiety disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for an evaluation of 50 percent, and no greater, for PTSD with anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.14, 4.27, 4.31, 4.130 Diagnostic Code 9411 (2017). 3. The criteria for an effective date of October 19, 2011, and no earlier, for the grant of a 50 percent evaluation for PTSD with anxiety disorder have been met. 38 U.S.C.A. § 1155, 5107(b) (2014); 38 C.F.R. § 3.400(o)(2), 4.7, 4.10, 4.21, 4.130, Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran and his representative have not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). I. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran asserts that he manifests symptoms of depression. VA treatment records show he has occasionally been observed to be tearful in therapy, and has expressed symptoms of depression. These records further show he is prescribed medications for Zoloft and bupropion for depression. See, generally, CAPRI Records (rec'd 7/15/2017) (particularly dated from 2011 to 2014, but also those dated from 2015-2017). See also January 2016 Statement of Veteran (filed under "Buddy/Lay Statement"); and January 2015 Statement of Veteran. Notwithstanding, VA examination for mood disorders conducted in 2015 showed disturbance of motivation and mood but no diagnosis of a psychiatric disorder other than PTSD. In pertinent part, the examiner opined that the Veteran did not manifest a diagnosis of any type of mood disorder to include depression. The examiner, a clinical psychologist and Ph.D., based her opinion on review of the Veteran's claims file to include VA treatment records, and on clinical interview with the Veteran. See November 2015 VA DBQ Examination for Mental Disorders (filed in CAPRI Records (rec'd 6/21/2016)), p. 13. VA examination for PTSD, conducted in 2016, confirms the diagnosis of PTSD. See May 2016 VA DBQ Examination for PTSD, pp. 4, 9. The examiner, also a clinical psychology and Ph.D., based her findings on review of the Veteran's claims file to include VA treatment records, and on clinical interview with the Veteran. The Board thus finds the 2015 and 2016 VA examinations to be adequate and of probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board observes that the Veteran was originally diagnosed with, and service-connected for, anxiety disorder in a March 2006 rating decision. However, an April 2012 rating decision identified the service-connected psychiatric disability as PTSD with anxiety disorder, and this description of the service-connected disability has been in place since, effective, as will be explained below, from October 2011. There is no other medical evidence that tends to show the Veteran has been diagnosed with a psychiatric disorder other than his service-connected PTSD with anxiety disorder during the period under appeal. In summary, the Veteran argues that he manifests a psychiatric disorder other than PTSD with anxiety disorder. The Veteran is competent to report his lay-observable symptoms, including of depression. However, he is not competent to diagnose such conditions. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Veteran's contentions regarding a diagnosis of a psychiatric disorder other than PTSD with anxiety disorder are of little probative value. The weight of the evidence of record is against a finding that the Veteran is diagnosed with a psychiatric disorder other than PTSD with anxiety disorder. Therefore, service connection for psychiatric disorder other than PTSD with anxiety disorder is not warranted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Shedden, supra. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 46 (1990). II. Increased Evaluation The Veteran seeks entitlement to a higher evaluation for PTSD with anxiety disorder. Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. "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 Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for anxiety disorder was granted in a March 2006 rating decision and evaluated as 10 percent disabling, effective in November 2004. In an April 2012 rating decision, the evaluation was increased to 30 percent, effective in January 2012, and described as PTSD with anxiety disorder (previously rated as anxiety disorder). In an October 2014 rating decision, the effective date for the 30 percent evaluation was established as December 1, 2011, the date the RO indicated an informal claim for increase was received. The Veteran has appealed both the evaluation and effective date assigned. The Veteran's PTSD with anxiety disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. In addition, the Board notes that the present case was originally certified to the Board in December 2014. Therefore, the change in regulations that require the use of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, 5th Edition (DSM-5) will be herein applied. See 79 Fed. Reg. 45093 (Aug. 4, 2014). What this means is that the Board will not discuss Global Assessment of Functioning (GAF) scores, where they may have been assigned, in keeping with DSM-5. However, the criteria used in evaluating the Veteran's psychiatric symptoms have not changed during the appeal period. PTSD is to be rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130, which affords a 50 percent evaluation 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 70 percent rating is provided where there is 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; obsessive 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 rating is warranted where there is 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. See 38 C.F.R. § 4.130, Diagnostic Code 9411. After review of the relevant medical evidence, the Board finds the Veteran's PTSD with anxiety disorder symptoms warrant a 50 percent evaluation throughout the time period under appeal. Vet Center treatment records, VA treatment records, and 2012, 2015 and 2016 VA examinations reflect that the Veteran reported hypervigilance, and heightened startle response, panic attacks, vivid memories of his stressors and intrusive thoughts, avoidance, emotional numbing, trust issues, poor impulse control, anger, and sleep impairment to include nightmares; anxiety, memory impairment, difficulty concentrating, and difficulty in establishing and maintaining effective social and work relationships throughout this time period. In addition, he was observed to manifest anxiety, tearfulness, rapid speech, inability to maintain thought, and tangential thoughts, and flattened affect. See 2012-2015 Vet Center Records, and, generally, CAPRI Records (rec'd 7/15/2017) (particularly dated from 2011 to 2014, but also those dated from 2015-2017). See also January 2016 Statement of Veteran (filed in "Buddy/Lay Statement") and January 2015 Statement of Veteran. However, his PTSD symptoms do not warrant a higher, 70 percent, evaluation. Although Vet Center records show he has exhibited anxiety with rapid speech, inability to maintain thought and tangential thought, the totality of the record, to include Vet Center records do not show he has been observed to present as disoriented or to act inappropriately. Rather, the medical evidence shows he has consistently presented as oriented and appropriately groomed. He has not reported visual or auditory hallucinations, or panic or depression of near-continuous duration so as to impact his ability to function independently, appropriately and effectively. And, while he has reported irritability and impaired impulse control, the record does not show that he has been found to be a danger to himself or others. He has reported no suicidal or homicidal ideation; and his judgment and insight have consistently been observed to be intact. The medical evidence does not show that the Veteran has reported or been observed to have obsessional rituals that interfere with routine activities, to neglect hygiene or be unable to perform activities of daily living. Finally, although he was divorced during the pendency of this appeal, he has also remarried. He is also attending school, albeit with some difficulty. See 2012-2015 Vet Center Records; see also, generally, CAPRI Records (in particular, those rec'd 7/15/2017); and 2012 and 2016 VA DBQ Examinations for PTSD; 2015 VA DBQ Examination for Mental Disorders. The Veteran has argued that his PTSD with anxiety disorder is worse than evaluated, and the Board has granted an evaluation of 50 percent, but no greater, based on the Veteran's reported symptoms and his assertion that his PTSD causes difficulty in establishing and maintaining effective relationships. However, the Veteran is not competent to opine as to the nature and severity of his PTSD systems. Hence, his contentions regarding the nature and extent of his disabilities cannot outweigh the medical observations and evaluations of his treating and examining health care professionals. See Layno, supra; see also Jandreau, supra. Accordingly, the evidence supports an evaluation of 50 percent, and no greater, for the servcie-connected PTSD with anxiety disorder. III. Earlier Effective Date Prior to December 1, 2011 for Increase in PTSD with Anxiety Disorder Evaluation The Veteran seeks an evaluation greater than 10 percent for his service-connected PTSD with anxiety disorder prior to December 1, 2011, the effective date for increase that was assigned in the October 2014 rating decision. After close review of the record, the Board finds that an effective date of October 19, 2011, and no earlier, is established as an effective date for the grant of a 50 percent evaluation for PTSD with anxiety disorder. The Veteran's attorney submitted a notice of disagreement in March 2007 to the March 2006 rating decision in which service connection for an anxiety disorder was granted and initially evaluated as 10 percent disabling. The RO issued a statement of the case in August 2008 addressing the issue of a higher initial evaluation greater than 10 percent for anxiety disorder. The Board acknowledges that in the June 2014 statement of the case, which addresses this current appeal, states that notification of the August 2008 statement of the case addressing the March 2007 notice of disagreement was issued in August 2012. However, this is in error. See August 12, 2008 Notification Letter and August 11, 2008 Statement of the Case. Neither the Veteran nor his attorney timely perfected an appeal to the March 2007 notice of disagreement and August 2008 Statement of the Case. Accordingly, the March 2006 rating decision became final. The next document from the Veteran or his attorney that can be construed as a claim concerning the service-connected PTSD with anxiety disorder is a statement to the Veteran's congressperson, a copy of which is stamped "Received" by the RO on December 1, 2011. See Congressional (rec'd 12/1/2011), p. 6. The statement referred to a claim that was 15 months old. The RO interpreted this as a claim for increase in the service-connected PTSD with anxiety disorder. See October 2014 Rating Decision; June 2014 Statement of the Case. The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). VA treatment records dated in October 2011 show that the Veteran presented for emergency treatment with headaches and intermittently blurry vision. He admitted to symptoms of anxiety and depression. He was seen later in the day by a mental health provider. The health care provider observed him to present as distraught, tearful, and with narrow affect but without auditory or visual hallucinations, homicidal or suicidal ideations. Zoloft was prescribed for neurosis, depressive symptoms, and anxiety. See October 19, 2011 Progress Note (filed in Medical Treatment Record - Government Facility (rec'd 1/9/2012)), p. 11. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). There is no other medical evidence in the year prior to December 1, 2011, the date the claim for increase was received, from which it may be factually ascertained that the Veteran's PTSD disability increased in severity. Accordingly, the earliest date within a year prior to December 1, 2011 that the increase in the Veteran's PTSD became factually ascertainable is October 19, 2011. In arriving at this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against these claims, the doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 46 (1990). ORDER Service connection for a psychiatric disorder other than the service-connected PTSD with anxiety disorder is denied. An evaluation of 50 percent, and no greater, for PTSD with anxiety disorder is granted, subject to the laws and regulations governing monetary benefits. An effective date for the assignment of a 50 percent evaluation for PTSD with anxiety disorder of October 19, 2011, and no earlier, is granted, subject to the laws and regulations governing monetary benefits. REMAND The record reflects that the Veteran has had a number of jobs since he entered VA care. The Veteran has stated, and that he has resigned from work to pursue his studies, but has also and has had difficulty with memory and concentration. See 2012 Vet Center Records (filed in Medical Treatment Record - Government (rec'd 9/18/2014)); and generally, CAPRI Records (in particular, those rec'd 7/15/2017). A claim for TDIU is part of a claim for increased evaluation when the Veteran claims he is unemployable, or the record shows, he has difficulty obtaining and maintaining substantial employment. See Rice, supra. The Veteran is service connected for PTSD with anxiety disorder, evaluated as 50 percent disabling from October 19, 2011 (as granted in this decision); irritable bowel syndrome, evaluated as 30 percent disabling from June 11, 2015; tinnitus, residuals of cold weather injury, left and right upper extremities, and residuals of cold weather injury right and left lower extremities all evaluated as 10 percent disabling, each, respectively, from November 20, 2004; posterior subcapsular cataract left eye, macular scar right eye, both noncompensable from October 16, 2014; and hemorrhoids associated with irritable bowel syndrome, evaluated as noncompensable from January 24, 2016. The reasons for the Veteran's claimed inability to obtain and maintain gainful employment are not clear from the record. In the 2012 Vet Center Intake, the Veteran reported he left some jobs. He has also reported being fired from several jobs. A July 2017 report of general information shows the Veteran is no longer employed with VA, but no reason is given for this. Accordingly, further development is required prior to the completion of appellate action. Accordingly, the case is REMANDED for the following action: 1. Conduct all appropriate development required to adjudicate the Veteran's claim for TDIU. Specifically, information regarding the Veteran's educational and employment history should be obtained. Attempts should also be made to obtain appropriate information from the Veteran's former employers concerning the nature of his departures from employment and/or reassignment. 2. Thereafter, and after completed any additional development deemed necessary, readjudicate the Veteran's claim for TDIU. If the benefit sought is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ DONNIE R. HACHEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs