Citation Nr: 19106933 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 16-31 803 DATE: January 30, 2019 ORDER Entitlement to an effective date prior to August 19, 2012 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial rating higher than 70 percent for PTSD, prior to May 8, 2017, is denied. FINDINGS OF FACT 1. A claim for service connection for PTSD was received in May 2010 and denied in an April 2011 rating decision; the Veteran did not submit a timely appeal for the April 2011 denial of this issue, nor has he filed a claim for revision of that denial based upon clear and unmistakable error (CUE); the April 2011 decision is final. 2. A claim for service connection for PTSD was received in August 2012. By rating decision dated in October 2013, the RO granted service connection for the Veteran’s PTSD, and awarded an effective date of August 19, 2012. 3. No communication received from the last final decision in April 2011 to August 19, 2012, may be interpreted as an informal claim of entitlement to service connection for PTSD. 4. The Veteran was not rated incompetent by the VA, nor did the evidence show that he had a physical, mental, or legal disability that prevented the filing of an appeal on his own behalf. 5. The Veteran’s PTSD did not more nearly approximate total occupational and social impairment, prior to May 8, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than August 19, 2012 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400 (2018). 2. The criteria for an initial rating higher than 70 percent for the Veteran’s PTSD are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9411 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1984 to June 1984, April 2007 to August 2007, and November 2008 to December 2009. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a January 2015 rating decision, entitlement to a TDIU was granted from August 22, 2013. The Board notes that this effective date does not encompass the current entire appeal period; however, the Veteran indicated on his application for TDIU that the last date he worked was August 21, 2013. See May 2014 VA Form 21-8940. As such, the Board finds that the grant of TDIU, effective the day following the last day the Veteran worked, is a complete grant of the appeal, and as such, is not before the Board, at this time. 1. Entitlement to an effective date prior to August 19, 2012 for the grant of service connection for PTSD is denied. The Veteran asserts he is entitled to an effective date prior to August 19, 2012 for the grant of service connection for his PTSD. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date the claim was received or the date the entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). A claim for service connection for PTSD was received in May 2010 and denied in an April 2011 rating decision. The Board notes that the Veteran has not filed a motion for revision of the April 2011 rating decision on the basis of clear and unmistakable error (CUE). This decision is final and the date of the claim for service connection necessarily must be after the date of the last final decision in April 2011. See 38 C.F.R. §§ 3.105, 3.400. A claim for service connection for PTSD was later received in August 2012. By rating decision dated in October 2013, the RO granted service connection for the Veteran’s PTSD and awarded an effective date of August 19, 2012, the date of the Veteran’s claim. Of note, prior to March 24, 2015, VA recognized formal and informal claims. [Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO.] The Board has considered whether any evidence of record prior to August 19, 2012 could serve as an informal claim, in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Unfortunately, the Board finds that the Veteran did not submit any informal or formal claim for service connection for PTSD prior to the assigned effective date of August 19, 2012. The Board acknowledges that medical records reflect PTSD prior to August 19, 2012; however, the mere existence of medical evidence of a diagnosis and treatment does not establish an intent to seek service connection or entitlement to an earlier effective date. See Brannon v. West, 12 Vet. App. 32, 35 (1998). While the record shows that the Veteran had PTSD prior to August 2012, the record includes neither a formal nor informal claim for service connection for PTSD from the last final decision in April 2011 until the Veteran’s claim in August 2012. Therefore, there is no legal basis for the assignment of an earlier effective date under any other provision of law pertaining to the assignment of effective dates. As noted, the Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). The Veteran has asserted that due to his PTSD symptoms his claim was delayed, as he was not capable of making appointments at the VA and was unable to leave his home. See July 2014 statement. In Barrett v. Principi, 363, F.3d 1316, 1321 (Fed. Cir. 2004), the Federal Circuit held that for the purposes of determining whether a claimant timely appealed to that particular court, equitable tolling is available where a Veteran is able to show that the failure to file was the direct result of a mental illness that rendered him incapable of rational thought or deliberate decision making, or incapable of handling his own affairs or unable to function in society. The Federal Circuit cautioned that a medical diagnosis alone or vague assertions of mental problems will not suffice. Id. However, equitable tolling has been held to be inapplicable to issues involving effective dates under 38 U.S.C.A. § 5110. See Andrews (Holly) v. Principi, 351 F.3d 1134, 1137-38 (Fed. Cir. 2003) (holding that equitable tolling, which may be applied to a statute of limitations, does not apply to section 5110 as it does not contain a statute of limitations but merely prescribes when benefits may begin and provides for an earlier effective date under certain limited circumstances); Butler v. Shinseki, 603 F.3d 922 (Fed. Cir. 2010) (per curium). Even assuming that the principle of equitable tolling applies to the VA claims adjudication process, which it plainly does not, the Board points out that the Court, in Claiborne v. Nicholson, 19 Vet. App. 181 (2005), clarified that the burden of proof is on the Veteran to show that the failure to file an appeal was the direct result of a mental illness. Thus, the Veteran holds the burden of submitting competent medical evidence showing that he was mentally incapable of filing an appeal with regard to those prior decisions. Id. at 184. Indeed, in McCreary v. Nicholson, 19 Vet. App. 324 (2005), the Court declared, “[m]erely establishing mental incapacity, no matter how severe, is not sufficient for equitably tolling the judicial-appeal period.” In this regard, the Board points out that there is no persuasive evidence of record indicating that the Veteran at any time has been found to be incompetent. To the contrary, in May 2010, for example, it was noted that the Veteran reported going to the hospital caused him severe anxiety. However, examination revealed he was alert and oriented and insight, judgment, and cognition were intact. In a November 2014 note, the Veteran was reported to be competent. A January 2015 VA examination indicated the Veteran was competent. Although the medical evidence documents that the Veteran experienced anxiety and preferred to stay at home, the Board finds that the evidence tends to show that the Veteran was mentally competent throughout the period in question and was able to attend many treatment appointments. The Veteran has not submitted persuasive evidence to the contrary. In light of the foregoing, the Board finds that even if the concept of equitable tolling applies to the VA adjudication process, the Veteran still has not met his burden of showing that he was mentally incompetent to appeal the prior adverse decision or submit a claim on his behalf, and that the preponderance of the evidence is against a finding that equitable tolling of the appellate limitations period is appropriate. As such, the prior decision regarding PTSD in this case is final. While the Board is cognizant and sympathetic to the Veteran’s arguments, the presently assigned effective date is appropriate and there is no basis for an award of service connection for PTSD prior to that date. The rules pertaining to the effective dates of awards of VA compensation are prescribed by Congress, and neither the AOJ nor the Board is free to disregard them. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). Regardless of the equities of the Veteran’s situation, the AOJ and the Board can only allow benefits that are explicitly authorized. See Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990). In this case, an effective date earlier than August 19, 2012 for the award of service connection for PTSD is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to an initial rating higher than 70 percent for PTSD, prior to May 8, 2017 is denied. Entitlement to service connection for PTSD was granted in an October 2013 rating decision, at which time a 70 percent rating was assigned, effective August 19, 2012. The Veteran is rated as 70 percent disabled under 38 C.F.R. § 4.130, Diagnostic Code 9411. See 38 C.F.R. § 4.130, Diagnostic Code 9411. In an October 2017 rating decision, the Veteran’s PTSD rating was increased to 100 percent, effective May 8, 2017. The Veteran seeks entitlement to an initial rating higher than 70 percent for his PTSD, prior to May 8, 2017. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the entire record, including the Veteran’s treatment records. These show complaints and treatment, but will not be referenced in detail. The Federal Circuit has held that 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). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. 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 38 C.F.R. § 4.130, Diagnostic Code 9411, is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of the Veteran’s occupational and social impairment. The rating of 70 percent is warranted where there is evidence demonstrating that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Examples of symptoms include, but are not limited to suicidal ideation; obsessional rituals which interfere with his routine activities, speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, or 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 the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms including, but not limited to: 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; and memory loss for names of close relatives, own occupation, or own name. Id. After analysis of the evidence of record, the Board finds that the Veteran’s PTSD is appropriately rated by the currently assigned 70 percent rating, prior to May 8, 2017, and the criteria for an initial disability rating higher than 70 percent have not been met nor approximated at any time during the appeal period at issue. As noted, to warrant a 100 percent rating, the Veteran’s symptoms must meet or more nearly approximate total occupational and social impairment. The Board notes that the Veteran has experienced severe symptoms throughout the appeal period. He has reported irritability, anxiety, decreased motivation, and depressed mood throughout the entire period under consideration. He has also reported persistent delusions and hallucinations, both auditory and visual. However, the severities of these symptoms have not resulted in total occupational and social impairment. The Veteran was appropriately groomed on multiple occasions. See December 2014 VA treatment note. Although he has been diagnosed with social phobia, prior to May 8, 2017, he was able to maintain good relationships with his children. See April 2016 VA treatment record. The evidence also indicates that he enjoyed activities such as coloring and attending church. See January 2016 VA treatment record. Overall, the Board finds that the Veteran experiences impairment in social relationships, but he does not experience total social impairment. Importantly, the inability to establish and maintain effective relationships is contemplated in the currently assigned 70 percent rating. Regarding the Veteran’s occupational functioning, as noted in multiple treatment records, the Veteran is considered to have total occupational impairment, from August 22, 2013. Prior to that date, the Veteran indicated he was able to maintain employment, and therefore, did not experience total occupational impairment. See May 2014 VA Form 21-8940. Of note, the Veteran is currently in receipt of a TDIU rating, effective August 22, 2013. In conclusion, a rating higher than 70 percent is not warranted as the evidence does not indicate that the Veteran experienced total social impairment, prior to May 8, 2017. Although the Veteran continued to have interpersonal difficulties due to his PTSD symptoms, he maintained relationships with his children, attended church, and participated in hobbies, such as coloring and walking his dog; it cannot be said that the Veteran experienced total social impairment, prior to May 8, 2017. Moreover, the evidence does not indicate that the Veteran exhibited symptoms on par with those contemplated by a total rating. The Board realizes that the symptoms noted in the rating criteria are not intended to be an exhaustive list, but are examples of the type and severity of symptoms that indicate a certain level of disability. Examining the Veteran’s PTSD symptoms as a whole, however, the Board concludes that the Veteran’s symptomatology more nearly approximates the criteria for a rating of 70 percent, prior to May 8, 2017, as the evidence does not show his symptoms were of similar frequency, severity, and duration necessary to qualify for an increased (100 percent) rating during this time period. Thus, the Board finds that based on the overall record evidence, including the Veteran’s lay statements, the effects of the Veteran’s PTSD symptoms are of a type, frequency, and severity that are in accord with the level of impairment contemplated by the criteria of the assigned 70 percent schedular rating prior to May 8, 2017. As the preponderance of the evidence is against the claim, the claim must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Andersen, Counsel