Citation Nr: 19115288 Decision Date: 03/05/19 Archive Date: 03/01/19 DOCKET NO. 16-06 484 DATE: March 5, 2019 ORDER Entitlement to an initial rating of 50 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to an effective date prior to May 19, 2014, for the grant of service connection for PTSD is denied. REMANDED Entitlement to a rating in excess of 50 percent for PTSD is remanded. FINDINGS OF FACT 1. During the rating period on appeal, the most probative evidence of record shows that the Veteran manifested functional impairment productive of a 50 percent rating for his service-connected PTSD. 2. The Veteran’s claim of entitlement to service connection for PTSD was received on May 19, 2014. The record does not contain correspondence that may be reasonably considered as a claim of entitlement to service connection for PTSD prior to that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 50 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an effective date prior to May 19, 2014, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1969 to February 1972, including in the Republic of Vietnam. He was awarded the Silver Star, Bronze Star, Purple Heart, and the Army Commendation Medal, among other decorations. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran testified before the undersigned Veteran’s Law Judge in November 2016. A transcript of the hearing is associated with the claims file. Increased Rating – Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Further, a disability rating may require re-evaluation in accordance with changes in a veteran’s condition. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). General Rating Criteria – Mental Disorders Ratings for mental disorders are assigned based on the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, and shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Under the General Rating Formula, 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 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). 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; and 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 work like setting); inability to establish and maintain effective relationships. A maximum 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. Increased Rating – PTSD The Veteran underwent a VA examination in October 2014. He reported experiencing suspiciousness, disturbed sleep, and emotional detachment after being wounded in combat and returning home from Vietnam. The examiner diagnosed PTSD, and opined that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner listed symptoms of depressed mood, anxiety, and chronic sleep impairment. VA treatment records reflect that the Veteran has had mental health treatment during the appeal period. In December 2014, a mental status examination showed that the Veteran was pleasant and cooperative, exhibited normal speech, euthymic mood, congruent affect, logical thought process, and denied suicidal intent. In June 2015, a mental status examination showed that the Veteran was alert and oriented, exhibited speech with normal rate and rhythm, neutral mood, congruent affect, logical and goal directed thought process, and no psychotic symptoms or suicidal/homicidal intent. The Veteran appeared at a Board hearing in November 2016. He testified, among other things, that he believed the October 2014 VA examination did not accurately reflect the severity of his condition, and that he experienced memory loss affecting his short and long-term memory, nightmares, and flashbacks due to his PTSD. He described having occupational difficulties when interacting with coworkers, and leaving his job due to stress associated with interacting with union representatives. The Veteran submitted lay statements describing his symptoms in December 2016. He indicated that he suffered from suicidal ideation, impaired sleep, memory loss, flashbacks and intrusive thoughts, and depressed mood. He described impairment in developing and maintaining effective social and family relationships, including an inability to show emotion, and having frequent arguments with his wife. He reported that his symptoms started in 1970, and have continued since that time. The Veteran’s wife also submitted lay statements in December 2016. She reported becoming engaged to the Veteran prior to his leaving for Vietnam, and that he had changed when he returned home from service. She reported that the Veteran exhibited depressed mood, mood swings, avoided friends and activities, and had flashbacks and nightmares about his service. She recounted conversations she had with friends where they asked about the Veteran’s emotional detachment, and she indicated that the Veteran’s behavior would often disturb family events. After thorough review of the record, the Board concludes that the Veteran exhibited functional impairment warranting a 50 percent initial rating for his service-connected PTSD during the period on appeal. The Veteran and his wife have provided competent testimony that the Veteran has experienced symptoms including depressed mood, anxiety, and chronic sleep impairment. As these symptoms have been attributed to his PTSD by a VA medical examiner, the Board may consider functional impairment due to such symptoms without remanding for a medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (indicating that although a Veteran is considered competent to report symptoms, medical knowledge is required to attribute reported symptoms to a particular condition, such as PTSD). The lay evidence and testimony provided by the Veteran and his wife show that the Veteran’s confirmed PTSD symptoms of depressed mood, anxiety, and chronic sleep impairment have been of such frequency, extent, and duration that a higher rating should be assigned. 38 C.F.R. § 4.126 (a). Specifically, the Veteran reported only getting 5-6 hours of sleep with medication, and having frequent nightmares on a weekly basis. The Veteran reported that his mood is constantly depressed, and is always an issue despite taking medication. The Veteran’s wife described how the Veteran’s depressed mood interferes with his ability to interact with others. Additionally, the Veteran reported stress and anxiety in dealing with coworkers. The law is clear. Pursuant to applicable regulations, 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.” 38 C.F.R. § 4.7. Although there is some evidence against the claim, the Board finds that the credible testimony provided by the Veteran and his wife shows that the Veteran’s confirmed PTSD symptoms have manifested functional impairment productive of a 50 percent rating. Therefore, an initial rating of 50 percent for PTSD is granted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). Earlier Effective Date – PTSD Generally, the effective date of a rating 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 later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400; Mitchell v. McDonald, 27 Vet. App. 431, 433 (2015). The Veteran’s claim for entitlement to service connection for PTSD was received on May 19, 2014. Therefore, such date is properly considered to be the effective date of service connection for the Veteran’s claim. The Board has carefully reviewed the record, but does not find any correspondence that may reasonably be interpreted as an informal claim for service connection for PTSD prior to that date. The Board understands the Veteran’s reports that he has lived with symptoms of PTSD for a long period of time. However, the Board is bound by the laws enacted by Congress and the regulations promulgated by VA, and is without authority to grant the benefit sought on appeal. Therefore, the claim for an effective date of service connection for PTSD prior to May 19, 2014, must be denied. REASONS FOR REMAND The Veteran has indicated that the severity of his PTSD has worsened since the October 2014 VA examination. Accordingly, the Veteran should be afforded a VA examination to determine the current severity of his service-connected PTSD. See 38 C.F.R. § 3.327; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 2. Thereafter, readjudicate the claim at issue on appeal. If the benefit sought remains denied, furnish the Veteran and his representative with a Supplemental Statement of the Case. Allow an appropriate period for response before returning the appeal to the Board for review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel