Citation Nr: 19124239 Decision Date: 04/01/19 Archive Date: 04/01/19 DOCKET NO. 17-54 096 DATE: April 1, 2019 ORDER 1. Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. 2. The VA Form 9 received on November 21, 2016, was not timely filed and the appeal is denied. REMANDED 1. The issue of entitlement to an earlier effective date for service connection for PTSD prior to February 20, 2017, is remanded. 2. The issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to the service-connected disabilities is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s PTSD has not been manifested by total occupational and social impairment. 2. In a November 2012 rating decision, the RO denied service connection for PTSD. The Veteran disagreed with this decision and a statement of the case was issued on June 6, 2016. 3. A substantive appeal was not received within 60 days of notification of the June 6, 2016, statement of the case. The VA form 9 was not received by VA until November 21, 2016, well after the period for perfecting the appeal ended. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for an initial rating higher than 70 for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2018). 2. A timely substantive appeal regarding the November 2012 rating decision and the June 2016 statement of the case was not received and that rating decision is final. 38 U.S.C. §§ 7105, 7108 (2012); 38 C.F.R. §§ 20.200, 20.202, 20.300 to 20.306, 20.1103 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1968 to January 1971. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from an April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The issue of entitlement to a TDIU is raised as part of an increased rating claim when the Veteran seeks the highest rating available and there is evidence of unemployability due to service-connected disabilities. The record reflects that the issue has been raised in this case and thus, the issue is currently before the Board. Specifically, the issue of entitlement to a TDIU was raised in the May 2017 notice of disagreement. As will be explained in the remand section below, the earlier effective date claim for the grant of service connection for PTSD that is currently on appeal is being deferred until the Veteran’s motion alleging CUE in the RO’s November 2012 rating decision is addressed by the agency of original jurisdiction (AOJ) in the first instance. For the reasons indicated in the remand section below, the latter matter is referred to the AOJ for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (2018) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 19.9(b) (2018) (continuing to provide for Board referral of unadjudicated claims). 1. Entitlement to an initial rating higher than 70 percent for PTSD is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). However, the Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. A 100 percent evaluation is warranted for PTSD when there is evidence of 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. 38 C.F.R. § 4.130, DC 9411 (2018). The use of the term “such as” in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The Veteran contends that an initial disability rating higher than 70 percent is warranted for his PTSD. He was awarded service connection in the April 2017 rating decision and assigned a 70 percent rating effective February 20, 2017. As noted above, a 100 percent evaluation, the next higher rating available after the 70 percent disability rating, is warranted when there is evidence of total occupational and social impairment. The evidence of record does not show that the Veteran had such total occupational and social impairment. As an initial matter, the Board notes that the VA examiner in March 2017 specifically found that the Veteran did not have total occupational and social impairment due to his PTSD symptoms. As will be demonstrated below, the other evidence of record also supports that finding. The Board further notes that the medical evidence of record, to include VA medical records and VA examinations, generally do not demonstrate symptoms associated with that percentage, such 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. Such evidence also does not show other symptoms of similar severity, frequency, and duration consistent with a 100 percent rating. The March 2017 examiner did not find evidence of psychosis. Additionally, treatment records do not reflect reports of auditory and visual hallucinations or delusions. The Veteran has not shown gross impairment in thought process or communication; or disorientation to time or place or memory loss. The March 2017 examiner noted mild memory loss, such as forgetting names, directions, or recent events. However, the examination report did not reflect disorientation to time or place, or gross impairment in thought processes or communication. Additionally, there is no evidence to indicate that such involved the names of close relatives, the Veteran’s own occupation, or his own name. Treatment records generally showed speech within normal limits, with linear thought processes, and fair insight. See Private Treatment Record dated September 9, 2016. The Veteran has not demonstrated grossly inappropriate behavior. The March 2017 examiner noted his reports of irritability and angry outbursts. He indicated that he experienced difficulty controlling his anger. However, the examiner did not find evidence of grossly inappropriate behavior. Overall, the evidence of record is consistently silent regarding any findings of grossly inappropriate behavior. The examination report noted symptoms including irritability, as well as impaired impulse control. However, there is no indication that such symptoms rose to the degree of grossly inappropriate behavior as contemplated by the rating criteria for a 100 percent disability rating under DC 9411. Throughout this period, the Veteran was not in persistent danger of hurting himself or others. The March 2017 examiner noted daily thoughts of suicide, as well as two previous suicide attempts. However, that VA examiner did not conclude that the Veteran was in persistent danger of hurting himself or others. Private treatment records prior to the date of service connection also reflect reports of daily suicidal ideation and various plans, but with no accompanying intent. See Private Treatment Record dated September 9, 2016. Despite these notations, there is no lay or medical evidence that reflects the Veteran poses a persistent threat to himself as there is no indication of a consistent intent or plan throughout the appeal period, nor have there been any attempts of suicide during this time. Therefore, the Board finds that these symptoms have not been shown to be productive of total occupational and social impairment commensurate with a 100 percent disability rating under DC 9411. Furthermore, there is no evidence that the Veteran has an inability to perform activities of daily living. The March 2017 examiner did not indicate any reports of difficulties with completing activities of daily living. Although the examiner noted the Veteran’s disheveled appearance at the time of the exam, there was no indication that he was unable to maintain minimal hygiene. The Board notes that the Veteran has claimed that a disability rating higher than 70 percent may be warranted, but this is not borne out by the record above. Although there are occasional indications of symptomatology indicative of a 100 percent disability rating, the overall disability picture is more consistent with a less than complete social and occupational impairment for a 100 percent disability rating. With respect to the Veteran’s occupational functioning and impairment, the Board observes that the VA examination and treatment records do not indicate total occupational and social impairment, as the Veteran has been married to his wife for almost 20 years and was employed on a full-time basis up until six months before the date of service connection. The Board finds that these statements from the medical professionals are more probative as to the level of occupational and social impairment due to PTSD symptoms than any lay testimony provided by the Veteran. Thus, although the Veteran may have some level of occupational impairment due to his PTSD symptoms, the Board finds that based on the Veteran’s social history and lack of deficiencies in functioning, such symptoms would not encompass total occupational and social impairment as contemplated for a 100 percent rating. In this regard, the Board notes that the 70 percent rating assigned is recognition of occupational and social impairment with deficiencies in most areas. As demonstrated above, the Veteran’s symptoms are of a similar type, duration, and severity as those associated with a 70 percent disability rating. Overall, the record does not demonstrate that the Veteran had total occupational and social impairment during the appeal period. Though the Veteran undoubtedly has had some severe PTSD symptoms, he has been generally able to function independently and has not demonstrated complete impairment. Therefore, a disability rating higher than 70 percent is denied. 2. The VA Form 9 received on November 21, 2016, was not timely filed, and the appeal is denied. Per VA regulation and as applicable to this case, a substantive appeal consists of a properly completed VA Form 9 “Appeal to Board of Veterans’ Appeals” or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b). A November 2012 rating decision denied service connection for PTSD. The Veteran was notified of this decision by a letter dated December 5, 2012. The Veteran filed a timely notice of disagreement in September 2013 and was subsequently issued a statement of the case on June 6, 2016. The Veteran submitted a VA Form 9, which was postmarked on November 17, 2016 and received on November 21, 2016, which was after the filing deadline for perfecting the appeal had passed. See 38 C.F.R. § 20.302. The Veteran and his representative essentially contend that the June 2016 statement of the case was mistakenly picked up by his renters. See Correspondence dated February 23, 2017. There is a presumption of regularity in the law to the effect that “[t]he presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.” Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). Although the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the RO level, such as in the instant case. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). The Board finds that the contentions of the Veteran and his representative alone are not sufficient to rebut the presumption of regularity as to the delivery of the statement of the case to the address of record on file for the Veteran. Additionally, the record reflects that the statement of the case was also sent to the Veteran’s representative at the time, and there is no evidence to indicate that this copy was not delivered or returned as undeliverable. As such, the Board finds that the VA Form 9 was not received by VA until November 21, 2016. No written document that could constitute a VA Form 9 was received within 60 days of the date on which the June 6, 2016, statement of the case was sent to the Veteran, or within the remainder of the one-year period from the date of the December 15, 2012, letter notifying him of the rating decision. Based on this evidence, the Board finds that the Veteran’s November 21, 2016, VA Form 9 was not timely filed. As such, the November 2012 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103.   REASONS FOR REMAND 1. The issue of entitlement to an earlier effective date for service connection for PTSD prior to February 20, 2017, is remanded. An April 2017 rating decision granted service connection for PTSD and assigned a 70 percent disability rating, effective February 20, 2017. The claim was previously denied in a November 2012 rating decision. In May 2017, the Veteran filed a notice of disagreement requesting an earlier effective date for the service-connected PTSD. The NOD alleged that the effective date of service connection had been improperly assigned based upon CUE. As noted above, the AOJ has not adjudicated the CUE claim; as such, the Board has no jurisdiction of this matter and it has been referred. As the earlier effective date and CUE claim are premised on the same set of material facts and resolution of the CUE claim in the Veteran’s favor would render the earlier effective date claims moot, the Board finds that the earlier effective date claim is inextricably intertwined with the CUE claim, and will defer consideration of the earlier effective date matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). 2. The issue of entitlement to a TDIU is remanded. As noted above, the issue of entitlement to a TDIU has been raised by the record as part of the Veteran’s claim for an increased rating for PTSD. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). A remand is therefore warranted for the RO to conduct appropriate development of the TDIU claim. Specifically, the RO should allow the Veteran the opportunity to submit a formal TDIU application (VA Form 21-8940) to facilitate further information on the nature of the Veteran’s claimed unemployability due to his service-connected disability. The matters are REMANDED for the following action: 1. Provide the Veteran and his attorney the prescribed claim form for a request for CUE. If a proper CUE claim is submitted, adjudicate the intertwined issue of whether there was CUE in the November 2012 rating decision that denied service connection for PTSD. Only if the Veteran perfects an appeal by submitting a timely and adequate NOD and substantive appeal, the AOJ should forward the claim to the Board for the purpose of appellate disposition on the CUE claim. 2. Ensure that all necessary development is complete and readjudicate the claim of entitlement to an effective date earlier than February 20, 2017, for the grant of service connection for PTSD. As discussed above, this issue is inextricably intertwined with the CUE claim that was referred to the AOJ in the Introduction, and the Board will defer action on this claim until the CUE claim (if appropriately filed) has been adjudicated. 3. Provide the Veteran an opportunity to submit a completed TDIU application form (VA Form 21-8940), as well as appropriate notice of the evidence necessary to substantiate a claim for TDIU benefits, and undertake any development deemed necessary with respect to the Veteran’s TDIU claim. 4. Adjudicate the issue of entitlement to TDIU benefits. If the benefit sought is not granted in full, furnish the Veteran and his representative an appropriate supplemental statement of the case and provide an opportunity to respond. Thereafter, return the case to the Board for appellate review. H. M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel