Citation Nr: 20002852 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 18-01 859 DATE: January 14, 2020 ORDER Throughout the appeal period, entitlement to a 70 percent, but no higher, rating for other specified trauma or stressor related disorder (claimed as posttraumatic stress disorder (PTSD)) is granted, subject to regulations governing the payment of monetary awards. Entitlement to an effective date prior to April 1, 2015 for the award of service connection for other specified trauma or stressor related disorder is denied. FINDINGS OF FACT 1. For the appeal period, the Veteran’s other specified trauma or stressor related disorder is characterized by suspiciousness, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, impaired impulse control (such as unprovoked irritability with periods of violence), and difficulty in adapting to stressful circumstances (including work or a worklike setting). 2. No claim or informal claim for service connection for a psychiatric disorder was received prior to April 1, 2015. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for other specified trauma or stressor related disorder during the appeal period have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for an effective date earlier than April 1, 2015, for the grant of service connection for other specified trauma or stressor related disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from August 1986 to January 1997. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Initially, the Board notes that the issue seeking an earlier effective date was addressed in a December 13, 2017 statement of the case (SOC) and the increased rating issue was addressed in a December 14, 2017 SOC. December 29, 2017 correspondence from the Veteran’s attorney indicates that a VA Form 9 was being submitted for the issue listed in the December 14, 2017 SOC; however, the VA Form 9 indicates that all of the issues listed on the SOC were being appealed and does not specify the date of the SOC. Subsequently, the Agency of Original Jurisdiction (AOJ) certified the effective date and increased rating issues to the Board for review. To the extent that the evidence indicates the Veteran was also appealing the earlier effective date issue and that the RO’s actions led the Veteran to believe the issue remains on appeal, the Board has accepted jurisdiction of the earlier effective date issue. See Percy v. Shinseki, 23 Vet. App. 37 (2009).   1. Entitlement to an increased rating for other specified trauma or stressor related disorder In August 2015, the Veteran was service connected for other specified trauma or stressor related disorder at a noncompensable disability rating, effective April 1, 2015. During the course of the appeal, in December 2017, the rating was increased to 30 percent, effective December 8, 2017. The Veteran alleges he is entitled to a higher rating throughout the appeal period. The Board notes that it has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the claim being decided. In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s other specified trauma or stressor related disorder has been rated under Code 9411 and the General Rating Formula for Mental Disorders, which provide the following criteria: A 10 percent disability evaluation is assigned for 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 continuous medication. A 30 percent disability evaluation 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 such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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); and/or inability to establish and maintain effective relationships. 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, “a [V]eteran 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 (Fed. Cir. 2013). Furthermore, 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. Turning to the evidence, a February 2015 VA treatment record noted that the Veteran had been charged with domestic battery at one time, and a VA clinician diagnosed the Veteran with “other specified trauma and stressor related disorder subthreshold PTSD” in June 2015. The Veteran underwent a VA examination for other specified trauma or stressor related disorder in July 2015. The examiner found that the Veteran did not warrant a diagnosis of PTSD under DSM-5 criteria. Rather, the examiner diagnosed “other specified trauma and stressor-related disorder, extremely mild,” as likely as not related to military trauma. Secondly, the examiner diagnosed alcohol use disorder, in remission, and not related to military service. The examiner stated that “a mental condition has been diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.” The Veteran described an uneventful childhood but traumatic events in service. The Veteran was discharged in January 1997 at age 29. The Veteran described several relationships with women, a good relationship with his son, a neutral relationship with his daughter, and positive relations with his brothers. The Veteran reported working various jobs after the military and described a physical altercation with one co-worker sometime between 2010 and 2014. The Veteran also described his involvement in “a couple of bar fights.” The Veteran left his former job to avoid being fired after the physical altercation and he was working for his cousin’s janitorial business as of this examination. The Veteran’s appearance was casual and appropriate, his psychomotor and speech were within normal limits, and his eye contact was appropriate. The Veteran was cooperative toward the examiner but evasive about sexual encounters and relationships, and his affect was appropriate. The Veteran said that his mood was variable. The examiner found his thought content and processes normal, with no delusions, hallucinations, obsessions, compulsions, or panic attacks. The Veteran reported sleep impairment and nightmares. The examiner found his attention to be within normal limits, and the Veteran was oriented toward person, place, and time. His abstract reasoning and memory were within normal limits, his intelligence average, and the Veteran was able to maintain hygiene. The Veteran met regularly with VA clinicians from February to September 2015. A September 2015 VA psychiatry note stated that the Veteran denied suicidal or homicidal ideations, his manner was cooperative, his mood euthymic, his appearance and grooming neat, and his speech within normal limits. In August 2016, the Veteran’s girlfriend (“Ms. J.”) submitted a statement that she had been with the Veteran for four years. She said that the Veteran had unpredictable mood swings and became very angry when driving. She said that others had noticed the Veteran’s angry outbursts. She said that the Veteran became violent at times, striking and breaking objects and hitting her at one time, and that he had been arrested for fighting. She said that the Veteran’s mother had said that the Veteran had changed while in the Army, and that he did not have angry outbursts before his service. A June 2017 VA psychiatry note found no identified risk and said that the Veteran’s symptoms were stable. The Veteran underwent a second VA examination in December 2017. The examiner found that the Veteran showed “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 continuous medication.” The examiner found no other mental disorders other than other specified trauma or stressor related disorder. The Veteran reported that the police were called to his residence due to an argument between him and his current girlfriend, and the Veteran said that he grabbed her at one time and that the police were called at least two other times during the current relationship (the past year). The Veteran described grabbing a former girlfriend and removing her from his residence. He said that he is disturbed in crowded areas such as concerts. The Veteran said that his relationship with his parents is good and described the physical fight with a co-worker in 2014 that led to his leaving the job to avoid being fired. The Veteran said that he also threw a water bottle at a woman’s car when she upset him. The Veteran continued working as a janitor for his cousin’s janitorial business and described continuing outbursts of anger. The examiner found the Veteran’s appearance neat, his attitude cooperative, his speech coherent, his mood mildly dysphoric or aggravated, and his affect irritable. The Veteran’s thought process was goal-directed and logical, and he denied hallucinations and said that he had not had suicidal ideations since 2008. However, the Veteran said that he frequently has thoughts of hurting others. The Veteran was oriented times 4, and his recent and remote memory were intact, his attention good, his intelligence high average, and his judgment and insight were poor to fair. The Veteran described legal incidents including the police ordering him to leave his residence during an argument with his partner approximately a year earlier, and earlier domestic violence charges. The Veteran also said that he broke a man’s jaw at a VFW and was sued for hospital bills and said that he got into a pushing/ shoving confrontation at a mall doing Christmas shopping. The examiner noted symptoms including suspiciousness and chronic sleep impairment. The examiner also noted the Veteran’s anger, aggressiveness, and lack of remorse, and said that the Veteran has antisocial and narcissistic traits, with irritability due to other specified trauma or stressor related disorder. A June 2018 VA psychiatry medication management note found no substantial changes in the Veteran’s condition. The clinician noted “no identified risk” and stated that the Veteran reported ongoing nightmares approximately twice weekly but that the Veteran’s irritability had improved due to medication. In a statement dated in January 2019, the Veteran’s cousin stated that he speaks regularly with the Veteran and that the Veteran had been a responsible and loving person who got along well with everyone. However, the cousin reported that he had noticed changes in the Veteran since his return from service, and that the Veteran had become quick-tempered, difficult to deal with, aggressive, foul-mouthed, and sarcastic. The cousin also noted that the Veteran now has memory loss and a negative outlook. He said that the Veteran has a flattened affect and does not get haircuts regularly, and that the Veteran is socially isolated and does not handle stress well. In an August 2019 written statement, the Veteran stated that he sometimes finds himself saying something other than what he wanted to say, sometimes forgets where he is going when driving the car, and that he has thoughts about suicide. The Veteran stated that two or three times a week he thinks that everyone would be better off without him. The Veteran reported that he checks to make sure that the doors and windows of his house are locked and said that he is suspicious in public and has panic attacks when around at least three or four unfamiliar people. The Veteran said that loud noises and screaming can trigger flashbacks for him. He stated that he needs to be alone frequently and that is causing problems in his relationship. The Veteran reported spending money excessively, going days or even weeks without showering, and neglecting to brush his teeth and change his clothes from day to day. He stated that he yells and curses in response to stress, sometimes kicking walls, and that he has no friends and no social life. He indicated that he just goes to work and comes home. In a May 2016 statement, the Veteran’s attorney argued that the Veteran’s condition warranted a rating of 50 percent or more because the April 2015 VA treatment record noted the Veteran’s nightmares, irritability, anger, and hypervigilance. The Veteran’s attorney pointed out the multiple assaults in the Veteran’s history and his loss of his job in 2014. In the August 2019 Statement of Accredited Representative, the Veteran’s attorney argued that the Veteran’s other specified trauma or stressor related disorder (claimed as PTSD) warrants a 70 percent rating for the period on appeal. The Veteran’s attorney pointed out the evidence of suicidal ideation, near-continuous panic or depression affecting the ability to function independently, impaired impulse control, including domestic violence, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. At the outset, the Board acknowledges that on July 2015 VA examination, the examiner indicated that while the Veteran did not meet the criteria for a personality disorder diagnosis, he did have personality traits that affected his work and social relationships. These were noted to be a “desire for immediate gratification of sensual desires, exploitation in relationships (especially with women), irresponsible behaviors, and irritability when feels disrespected”). Further, during the December 2017 VA examination, the examiner indicated that the Veteran likely had cluster B personality traits (mixed Antisocial-Narcissistic including problems with anger, aggression towards others, lack of remorse for hurting others, lack of empathy, sense of grandiosity and entitlement, and exploitivity in relationships). The December 2017 VA examiner indicated that the symptoms of the Veteran’s other specified trauma and stressor disorder may wax and wane at times and that there is partial overlap among the stressor disorder and his personality traits, including irritability/aggressivity and this his problems with this and other noted personality traits may appear to be conflated with purported symptoms, including irritability, that one might associate with a stressor disorder. The Board finds this opinion to be persuasive of a conclusion that the Veteran’s personality traits and symptoms from the other specified trauma and stressor disorder cannot be distinguished. Therefore, the Board must consider all of the Veteran’s psychiatric symptoms in conjunction with his service-connected other specified trauma and stressor disorder and the analysis below will so follow. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that if it is not medically possible to distinguish the effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to a veteran’s service-connected condition). Considering the evidence, the July 2015 VA examiner determined that “a mental condition has been diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication.” The evidence indicates that the Veteran has experienced symptomatology from rating criteria for 30 percent, 50 percent, and 70 percent ratings. These symptoms include mild memory loss, suspiciousness, and chronic sleep impairment (30 percent criteria); flattened affect, impaired judgment, and disturbances of motivation and mood (50 percent rating criteria); and suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence), difficulty in adapting to stressful circumstances (including work or a worklike setting), and neglect of personal appearance and hygiene (70 percent rating criteria) for the entire appellate period. The record shows that the frequency, severity, and duration of these symptoms have caused the Veteran occupational and social impairment with deficiencies in most areas, as he has been charged with domestic violence, left a job in order to avoid termination for attacking a co-worker, assaulted at least two romantic partners, injured a man’s jaw, engaged in a violent confrontation at a shopping center, thrown a water bottle at a moving car, and he has no friends or social life. The Board finds that the frequency, duration, and severity of these symptoms are consistent with the functioning contemplated by a 70 percent rating. The Board has also considered the statements of the lay witnesses regarding the severity of the Veteran’s psychiatric disorder. They are competent to report the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation, and the Board has considered these statements in assigning an increased 70 percent rating. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). The evidence, however, does not show that the Veteran’s occupational and social impairment more nearly approximates total occupational and social impairment as contemplated by a 100 percent rating. There has been no evidence of symptoms that more nearly approximate the frequency, severity, and duration of total occupational and social impairment, including no evidence of symptoms such as gross impairment of thought process or communication, persistent delusions or hallucinations; grossly inappropriate behavior, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any other symptoms of similar frequency, severity, or duration. Regarding social impairment, the evidence indicates that the Veteran is currently married, although the relationship has difficulties. He maintains a good relationship with his parents, his brothers, and his son, and he maintains contact with his daughter and a cousin. VA examiners noted that although the Veteran was evasive or irritable at times in their meetings, he was appropriately dressed and groomed. Although the Veteran has had violent outbursts and has reported experiencing suicidal ideation, the evidence does not reflect that his symptoms are of such frequency, duration, and severity to be a persistent danger to himself or others. The frequency, duration, and severity of his symptoms do not more nearly approximate total social impairment. The frequency, severity, and duration of the Veteran’s symptoms also do not more nearly approximate total occupational impairment. Although the Veteran reported that he left his job in 2014 to avoid termination after a physical altercation with a co-worker, the evidence indicates that he currently works for his cousin’s janitorial service. Therefore, the evidence does not indicate that the Veteran’s other specified trauma or stressor related disorder causes him to have total occupational impairment. Thus, when considering the frequency, severity, and duration of all of the Veteran’s symptoms on occupational and social impairment, the Board concludes that symptoms of his psychiatric disorder cause him to have occupational and social impairment with deficiencies in most areas but not total occupational and social impairment; hence, they are not characteristic of the next higher, 100 percent rating. The Board has considered whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged ratings”). The Board finds that the Veteran’s symptoms have been consistent with a 70 percent rating for the entire appellate period. The record does not indicate any significant increase or decrease in such symptoms during the period under consideration. Accordingly, staged ratings are not warranted, and the 70 percent rating is appropriate for the appeal period. In sum, the evidence as a whole shows that the frequency, severity, and duration of the Veteran’s other specified trauma or stressor related disorder symptoms most nearly approximate social and occupational impairment with deficiencies in most areas, and a preponderance of the evidence is against a finding that such impairment more nearly approximated the criteria warranting a 100 percent rating. Accordingly, the Board concludes that the Veteran is entitled to a 70 percent, but no higher, rating for other specified trauma and stressor disorder for the full appeal period. 2. Entitlement to an earlier effective date for service connection for other specified trauma or stressor related disorder The Veteran seeks an effective date earlier than the currently assigned effective date of April 1, 2015, for the award of service connection for other specified trauma or stressor related disorder.   The effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed after that date, the new amendments are applicable and will be applied. However, given the proximity of the current April 1, 2015 effective date to the effective date of the regulations requiring that all claims be filed on standard forms, the Board will also consider whether an informal claim was filed under the regulations effective prior to March 24, 2015. Under the earlier regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. The claim could be filed by 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. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2014). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to April 1, 2015 that could be construed as a claim for service connection for a psychiatric disorder. The Board finds that there are no communications of record identifying a request for entitlement for benefits for a psychiatric disorder that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a). Rather, the April 1, 2015, VA Form 21-526EZ, Fully Developed Claim (Compensation), claim for benefits was the first correspondence of record in which the Veteran expressed a desire to seek disability compensation for a psychiatric disorder. Neither the Veteran nor his attorney has provided any specific argument in support of the claim for an earlier effective date. To the extent the Veteran experienced symptoms prior to April 1, 2015, the Board notes that while clinical records were previously recognized, in some instances, as informal claims under 38 C.F.R. § 3.157(b), this applied only if the evidence pertained to examination or treatment of a disability for which service connection had been previously established. Specifically, medical records were not accepted as informal claims for disabilities where service connection had not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). As such, even if medical records in the file indicate symptoms prior to April 1, 2015, these cannot be accepted as an informal claim for service connection.   In sum, having reviewed all communications in the claims file, the Board finds that there is no probative evidence that the Veteran submitted any formal or informal communications with respect to a psychiatric disorder prior to the April 1, 2015 formal claim noted above. Thus, there is no legal basis for awarding an earlier effective date, and the claim is denied. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Dean, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.