Citation Nr: 1823786 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-29 091 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date prior to August 19, 2013, for the grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an initial rating in excess of 30 percent for PTSD. REPRESENTATION Veteran represented by: Robert W. Gillikin, II, Attorney at Law ATTORNEY FOR THE BOARD G. A. Ong, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Guaynabo, Puerto Rico. Jurisdiction is currently retained by the RO in Roanoke, Virginia. In March 2014, the RO granted an initial rating of 30 percent for PTSD, effective August 19, 2013. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for the entire period on appeal, the claim is still in controversy and on appeal. Id. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. FINDINGS OF FACT 1. In a June 2012 decision, the Board denied the Veteran's claim to service connection for PTSD. 2. On August 30, 2012, the VA received the Veteran's claim to reopen service connection for PTSD. Prior to the receipt of the August 2012 claim there were no pending requests for service connection that remained unadjudicated. 3. Since August 30, 2012, the Veteran's PTSD was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks with symptoms such as anxiety, suspiciousness, panic attacks, and chronic sleep impairment; occupational and social impairment with reduced reliability and productivity has not been shown during this period. CONCLUSIONS OF LAW 1. The criteria are met for an earlier effective date of August 30, 2012, for the grant of service connection for PTSD. 38 U.S.C.A. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400 (2017). 2. The criteria are not met for an initial rating higher than 30 percent for service-connected PTSD. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). This appeal arises from the Veteran's disagreement with the initial effective date and evaluation assigned following the grant of service connection for PTSD. Where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). No additional discussion of the duty to notify is therefore required. The record also reflects that VA made reasonable efforts to obtain relevant records. In this regard, the record includes the Veteran's private and VA outpatient treatment records and service treatment records. By letter dated March 2007, the RO asked the Veteran to provide the names and addresses of all medical care providers who have treated him for his PTSD. In July 2010, the Board remanded for further evidentiary development. While the Veteran submitted Authorizations for Release of Information (VA Form 21-4142) in August, October, November, and December 2010 and December 2012, he only provided names and addresses of medical care providers who have treated him for his right shoulder and cardiac arrest. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). As discussed above, the Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process. Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. II. Earlier Effective Date 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). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § 5110(b)(1). The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Claims or appeals pending on that were pending on that date are to be decided by the regulations as they existed prior to the amendment. Id. As the Veteran's claim was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. Under the law prior to the amendment, a claim was defined as 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). An informal claim was any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Veteran contends he is entitled to an earlier effective date prior to August 19, 2013 for the grant of service connection for PTSD. The Veteran submitted a request to reopen his claim for service connection for PTSD in correspondence received on August 30, 2012 and submitted new and material evidence. The Veteran's representative submitted further briefs in support of the Veteran's claim to reopen, which were received on January 17, 2013 and August 19, 2013. Thereafter, the RO granted service connection for PTSD in a rating decision dated March 2014 with an effective date of August 19, 2013. In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the Veteran's claim of PTSD is August 30, 2012, the receipt date of his request to reopen his claim for service connection for PTSD. The record reflects that the Veteran submitted his initial claim for service connection for PTSD in January 2007. The claim was denied by the RO in a rating decision dated December 2007. In July 2010, the Board remanded the claim for evidentiary development, and subsequently denied the claim in June 2012. The Veteran did not appeal the June 2012 Board decision. The June 2012 Board decision is therefore final. The proper effective date for new and material evidence other than service medical records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i) (2012); 38 C.F.R. §§ 3.400(q)(2), 3.400(r) (2017). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). The issue of CUE in a specific prior RO or Board decision has not been raised by the veteran and, therefore, is not before the Board at this time. Consequently, an earlier effective date before the last final June 2012 Board decision is not warranted by law. On August 30, 2012, the Veteran requested to reopen his claim for service connection for PTSD. In support of his claim, the Veteran submitted treatment records from Roanoke Vet Center that documented his treatment for PTSD. In January 2013 and August 2013, the Veteran's representative submitted correspondence that asserted the Veteran's prior claim for service connection for PTSD should be reopened. In a rating decision dated March 2014, the RO reopened the previous claim and granted service connection for PTSD with an effective date of August 19, 2013. No prior unadjudicated claims were outstanding. The Veteran's representative contends that as the Veteran's prior claim was reopened and granted, the effective date should be the filing date of his prior claim that was denied by the RO in December 2007. However, as discussed above, the applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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. A June 2012 Board decision denied service connection for PTSD and the request to reopen the claim was received on August 30, 2012. Therefore, the appropriate effective date is the date of the receipt of the claim to reopen. 38 U.S.C. § 5110(a). As the date of claim is over 45 years after his separation from service, the date of his separation from service cannot be used. 38 C.F.R. § 3.400(b)(2). Therefore, the Board finds that the proper effective date for the award of service connection for PTSD is August 30, 2012. 38 U.S.C. § 5110(a). III. Increased Schedular Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Notwithstanding the waxing and waning of the manifestations and individual clinician observations and finding, the service-connected PTSD has in the aggregate not materially changed, and a uniform evaluation is warranted for the entire period on appeal. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. 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 upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. 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 on the basis of social impairment. 38 C.F.R. § 4.126 (2017). Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders. The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5. Specifically, the rulemaking amended 38 C.F.R. §§ 3.384, 4.125, 4.126, 4.127, and 4.130. However, the provisions of this final rule do not apply to claims that were certified to the Board on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. As this appeal was certified to the Board in September 2016, the current version of the regulations including references to DSM-5 apply. The Veteran's PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted 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 symptoms such as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Diagnostic Code 9411 provides that a 50 percent rating is warranted where 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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; 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. Id. The Federal Circuit has found that § 4.130 requires an ultimate factual conclusion as to the veteran's level of impairment in "most areas" for a 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). A 100 percent rating is warranted 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; or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition of similar type and degree that affect the level of occupational and social impairment. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Veteran contends he is entitled to an initial rating in excess of 30 percent for his PTSD. Based on the evidence of record, the Board finds that the Veteran's demonstrated PTSD symptomatology does not warrant an evaluation greater than the currently assigned 30 percent rating. VA outpatient treatment records dated August 2012 reflect the Veteran endorsed poor appetite and irritability. The Veteran noted he "snapped" at his girlfriend. He denied any suicidal or homicidal thoughts, plans, or intent. Treatment notes indicate the Veteran presented as alert and fully oriented and displayed clear speech. The Veteran was afforded a VA psychological examination in December 2013. The VA examiner indicated that the Veteran's PTSD resulted in 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 medication. The Veteran endorsed occasional war nightmares, though "only once every couple months." He further endorsed symptoms of anxiety, chronic sleep impairment, startle response, hypervigilance, and avoidance of some cues or triggers. The Veteran reported that he gets along with his wife, stepdaughter, and his siblings. He noted he plays as a drummer in a band two to three times a month, occasionally goes out to eat, fishes, and goes to Myrtle Beach yearly. The VA examiner indicated the Veteran seemed to function "ok" in his workplace. The Veteran denied any hallucinations or delusions and also denied suicidal and homicidal ideation. Upon mental status examination, the VA examiner observed that the Veteran's affect ranged from mildly restricted to within normal limits. The VA examiner reported the Veteran had normal behavior, "somewhat" digressive speech, and grossly intact memory. The Veteran reportedly exhibited no panic attacks. The VA examiner noted that upon review of VA treatment records, the Veteran was not currently on any psychiatric medications. Subsequent VA outpatient treatment notes dated January to October 2015 reflect the Veteran was alert, active, well oriented, and communicative. On mental status examinations during this period, the Veteran exhibited clear speech and mentation, no dysthymia or inappropriate affect, no suicidal or homicidal thoughts, and was able to answer questions appropriately. In October 2015, the Veteran reported to his treating VA clinician that he was independent for activities of daily living. Thereafter, in January 2016, he stated that he was back at work and stayed active. VA outpatient treatment records dated October 2016 reflect the Veteran continued to deny suicidal or homicidal ideation, and was observed to be cooperative with appropriate mood and affect. Based on the Veteran's overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture approximates the level of severity contemplated by a 30 percent rating for PTSD. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. Regarding the Veteran's occupational and social functioning, he stated that he was able to return to work and got along with his members of his family. The Veteran also noted to his treating VA clinician that he was independent in activities of daily living. As discussed above, the Veteran indicated to the VA examiner that he played in a band and participated in social activities and trips. Although the VA examiner observed his affect to be mildly restricted to within normal limits, the Veteran's treating VA clinicians generally observed no dysthymia or inappropriate affect on mental status examinations. While the severity of the Veteran's PTSD rises to the level envisioned by the 30 percent rating threshold, the Veteran did not display a manifestation of symptoms with the severity, frequency, and duration comparable of a 50 percent disability rating. The medical evidence of record does not reflect that the Veteran's PTSD symptomatology was manifested by flattened affect, circumstantial, circulatory, or stereotyped speech, panic attacks more than once a week, difficulty in understanding complex commands, or impairment of short and long-term memory. Furthermore, the medical evidence of record does not reflect impaired judgment or abstract thinking, disturbances of motivation and mood, or difficulty in establishing and maintaining effective work and social relationships. Therefore, an occupational and social impairment with reduced reliability and productivity has not been shown. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran's disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Therefore, for the reasons stated above, the Board finds that the preponderance of the evidence is against assignment of a rating greater than 30 percent. See Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER Entitlement to an effective date of August 30, 2012, for service connection for PTSD is granted. Entitlement to an initial rating in excess of 30 percent for PTSD is denied. ____________________________________________ BISWAJIT CHATTERJEE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs