Citation Nr: 18135437 Decision Date: 09/14/18 Archive Date: 09/14/18 DOCKET NO. 14-04 024 DATE: September 14, 2018 ORDER An effective date earlier than September 13, 2004, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. An initial evaluation in excess of 70 percent for PTSD is denied. A total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU), effective September 13, 2004, is granted. FINDINGS OF FACT 1. The Veteran’s claim of PTSD was denied by a July 1995 rating decision; the Veteran neither appealed nor submitted new and material evidence within one year of this rating decision, and the decision is final. 2. The Veteran’s application to reopen a claim of service connection for PTSD was received by VA on September 13, 2004. 3. The Veteran did not submit sufficiently detailed information to allow for verification of his alleged in-service stressors through receipt of new service department records. 4. The Veteran’s PTSD is manifest by serious symptomatology resulting in occupational and social impairment with deficiencies in most areas; total occupational and social impairment is not demonstrated at any point during the appeal period. 5. The Veteran’s PTSD as likely as not renders him unable to obtain or maintain gainful employment throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 13, 2004, have not been met. 38 U.S.C. §§ 5108, 5110, 7105(c); 38 C.F.R. §§ 3.156, 3.400. 2. The criteria for an initial evaluation in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9411. 3. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met as of September 13, 2004. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1963 to September 1967. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. This case was most recently before the Board in January 2016, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Analysis Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). It is VA’s defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C. 5107(b); 38 C.F.R. 3.102. 1. Earlier Effective Date The Veteran seeks an effective date earlier than September 13, 2004, for the award of service connection for PTSD. Essentially, he asserts the award of service connection should be effective retroactively to his initial application for PTSD, which was received by VA in November 1994. The record reflects the Veteran first filed a claim of service connection for PTSD in November 1994. This claim was denied by the RO in a July 1995 rating decision. The Veteran was notified of this decision and of his procedural and appellate rights but did not complete an appeal of this decision nor submit new and material evidence within one year; therefore, the July 1995 rating decision is final. 38 U.S.C. § 7105(a); 38 C.F.R. 20.302, 20.1103. The Veteran submitted an application to reopen his previously disallowed claim of service connection that was received by VA on September 13, 2004. Following a February 2012 Board decision, which reopened the claim of service connection, the Veteran’s claim was granted by a November 2012 rating decision effective September 13, 2004, the date his application to reopen was received by VA. The effective date for a grant of service connection based on receipt of new and material evidence other than service department records that were received after the previous disallowance becomes final is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). If VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim notwithstanding the requirement for new and material evidence. See 38 C.F.R. § 3.156(c)(1). An award based all or in part of newly received service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. See 38 C.F.R. § 3.156(c)(3). The Board has considered the applicability of the provisions of 38 C.F.R. § 3.156(c) in the instant case. In this regard, while the Veteran’s claim of service connection was granted based upon revised regulations governing stressors in cases of PTSD under 38 C.F.R. § 3.304(f)(3), the Veteran’s attorney asserts that, had VA fully attempted to verify the reported in-service stressors, additional service department records may have been received which would result in an effective date earlier than September 13, 2004. In a January 1995 statement, the Veteran provided details of a stressor incident involving witnessing a truck traveling ahead of him in a convoy being destroyed by a mine during the first week of his deployment in Vietnam in August 1965. Although the Veteran was unable to provide the name or unit of the driver who was killed, he did provide VA with the approximate date and location of the convoy incident. After a search of the Marine Corps University Archive failed to locate pertinent records, the University Archive suggested that VA search the National Archives and Records Administration (NARA). However, VA declined to do so because the address for the NARA provided by the University Archive was that of the Ship’s History Branch of the Naval Warfare Division at the Naval Historical Center, and was therefore irrelevant to the Veteran’s claim, given that he served in the Marine Corps. Following a September 2016 Board remand, VA submitted an inquiry to the NARA for information related to the Veteran’s claimed stressor. NARA conducted a review of the Command Chronologies for the Headquarters and Maintenance Squadron 11 (H&MS-11), and identified that H&MS-11 did not begin maintaining unit level Command Chronologies until February 1966. Prior to this time, the Command Chronologies for H&MS-11 were included with the Command Chronologies for Marine Aircraft Group 11 (MAG-11). A review of Command Chronologies for MAG-11 identified that during the months of July, August, and September 1965 two, five, and zero individuals were killed as a result of aircraft accidents. There was no reference to any individuals killed while driving in a convoy. With respect to the claimed stressor of loading/unloading body bags, ammunition, and explosives in October 1965, NARA was unable to locate any reference relating to this incident. NARA concluded by noting that an additional review could be conducted if either the name of the individual who was killed, or the unit of assignment of the individual killed and the approximate date of death, could be provided. As noted above, the Veteran has been unable to provide this information. The Board finds that VA fulfilled its duties to assist the Veteran in obtaining relevant service department records, based on the evidence provided in conjunction with his original claim of service connection. No additional service department records have been received that would serve to verify the in-service stressors reported by the Veteran in his original 1994 service connection claim. Therefore, the provisions of 38 C.F.R. § 3.156(c) do not apply in the instant case. In fact, the record reveals that the grant of service connection was based largely on the revised regulations governing stressors for PTSD under 38 C.F.R. § 3.304(f)(3). Thus, the grant was not predicated on receipt of any additional service records. As noted above, the Veteran’s initial claim was denied by a January 1995 rating decision, which is final. Therefore, pursuant to 38 C.F.R. § 3.400(q)(2), the proper effective date shall not be earlier than the date of filing the new claim which, in the instant case, was received September 13, 2004. As such, the Board finds that an effective date prior to September 13, 2004, for the award of service connection for PTSD is not warranted, as the Veteran did not file a new claim for service connection for this condition prior to this date. Thus, the Veteran’s appeal must be denied. Id. 2. Increased Initial Evaluation Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Evidence to be considered in the appeal of the assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period (i.e., “staged ratings”). Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s PTSD has been assigned an initial evaluation of 70 percent throughout the appeal period pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria pertaining to the Veteran’s appeal is subsumed into the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 70 percent evaluation is warranted where the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. Finally, ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase “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 only 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). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the General Rating Formula. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. As noted above, the Veteran’s PTSD has been assigned an evaluation of 70 percent throughout the appeal period. After reviewing the evidence of record under the laws and regulations as set forth above, the Board finds that a preponderance of the evidence weighs against the assignment of an evaluation greater than 70 percent at any time during the appeal period under the applicable schedular criteria. In order to warrant a higher evaluation during this period, the Veteran’s PTSD must be manifest by symptomatology so severe as to result in total occupational and social impairment. In this regard, a November 2012 VA examination notes the Veteran avoids crowds and large groups and had difficulty engaging with people. He reported having a good relationship with all of his children, who are each fully grown, and having a few friends whom he has known through business and fishing at the Oceanside Pier. At an October 2013 VA examination, the Veteran reported similar symptoms, including avoidance of crowds and days where his irritability/anger causes him to push away from family and friends, but he is able to apologize afterwards and maintain his relationships. He reported remaining close to his family despite his symptoms, and enjoying going fishing with other veterans approximately three times per week. A July 2015 private medical review notes the Veteran becomes extremely upset around places, people, and events that remind him of the military. He tries to go to these events, but finds it emotionally difficult. December 2015 VA treatment records note the Veteran continues to go out to eat at restaurants with his wife. At a May 2017 VA examination, the Veteran’s PTSD was noted to result in anxiety, easy startle, irritability, and social avoidance, resulting in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and/or mood. Finally, a June 2018 private medical review notes the Veteran has good relationships with his children, grandchildren, and great-grandchildren, but has very little social interaction or relationships outside of his family. He frequently isolates himself from others, including from his wife and family, for up to three days at a time. Finally, the Veteran reported avoiding events where there are large crowds. Based on the evidence discussed above, the Board finds that the Veteran does not experience total social impairment as a result of his service-connected PTSD. He maintains good relationships with his family and, while he avoids large crowds, he indicates he enjoys fishing with friends and dine at restaurants with his wife. The Board acknowledges that a July 2018 Disability Benefits Questionnaire (DBQ) completed by a private psychiatrist indicates the Veteran’s PTSD results in total social and occupational impairment. However, the Board again notes that the medical review statement accompanying this DBQ indicates the Veteran has “very little” social interaction or relationships outside of his family. While this statement would indicate social isolation, it also suggests the Veteran maintains some limited social interaction and, therefore, does not support a finding of total social impairment. The Board acknowledges the Veteran’s contentions that his service-connected PTSD warrants an initial 100 percent evaluation. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected PTSD. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). Overall, the Board concludes that the evidence discussed above, as well as all other evidence of record not specifically addressed including VA and private treatment records and lay evidence, supports no more than a 70 percent schedular evaluation at any point during the appeal period. Accordingly, the Board finds the preponderance of the evidence is against an evaluation greater than 70 percent, and the appeal must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. TDIU Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, 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). 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). When considering whether the Veteran’s disabilities meets this requirement, disabilities resulting from a common etiology or single accident will be considered as one disability. Id. Initially, the Board observes the Veteran is eligible to receive TDIU benefits on a schedular basis. Therefore, the remaining inquiry is whether the Veteran was unable to secure or follow a substantially gainful occupation as a result of such service-connected disabilities during this period. Significantly, the Veteran has submitted two private medical statements in support of his appeal. In a July 2015 statement, Dr. E.T. stated that although the Veteran stopped working in approximately 2000 due to physical problems, his PTSD symptoms worsened during this time period and he was rendered totally disabled and individually unemployable due to his PTSD as of 2000 after he stopped working. In a July 2018 statement. Dr. T.R.M. stated that the Veteran has been totally disabled and unemployable due to PTSD since July 2004.   In light of the evidence discussed above, and resolving all doubt in favor of the Veteran, the Board finds entitlement to TDIU is warranted from September 13, 2004, the date service connection for PTSD has been awarded. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel