Citation Nr: 20005495 Decision Date: 01/23/20 Archive Date: 01/22/20 DOCKET NO. 19-16 002 DATE: January 23, 2020 ORDER Entitlement to a disability rating in excess of 70% for posttraumatic stress disorder (PTSD) is denied. Entitlement to an earlier effective date for service connection for PTSD is denied. FINDINGS OF FACT 1. The Veteran’s PTSD does not more nearly approximate that of total occupational and social impairment. 2. The Veteran’s claim of service connection for PTSD was received by VA on January 30, 2015, and neither the Veteran nor his attorney has argued otherwise. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 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, 4.1-4.14, 4.125-4.130, Diagnostic Code 9434 (2018). 2. The criteria for an effective date prior to January 30, 2015, for the award of service connection for PTSD have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2001 to October 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision of rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted a 70% disability rating for the Veteran’s PTSD, effective September 14, 2015. In April 2019, the RO issued a rating decision granting an effective date of January 30, 2015 for the Veteran’s 70% disability rating for PTSD. 1. Entitlement to a disability rating in excess of 70% for post-traumatic stress disorder (PTSD) The Veteran is currently rated at 70% disabled for PTSD. He alleges that his PTSD is more severe than it is rated. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms, at most, more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Veteran underwent VA examinations in August 2015, February 2016, and March 2017. The August 2015 VA examination indicated that the Veteran’s PTSD was manifested by symptoms such as recurrent and distressing recollections of the traumatic events; recurrent distressing dreams of the traumatic events; intense psychological distress from exposure to cues of the events; avoidance of thoughts and feelings about the events; persistent negative emotional state; feelings of detachment/estrangement; problems with sleep; and problems with concentration. The VA examiner opined that these symptoms caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform tasks only during period of significant stress. The Board finds the results of this exam to support a rating less than the 70% that the Veteran is currently rated. The February 2016 VA examination shows that the Veteran’s PTSD was manifested at worst by symptoms associated with a 70 percent rating such as suspiciousness, near-continuous depression affecting the ability to function independently, appropriately, and effectively, panic attacks more than once a week, mild memory loss, chronic sleep impairment, flattened affect, and inability to establish and maintain effective relationships which cause occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Finally, the March 2017 VA examiner was unable to conclude that the Veteran had a current diagnosis for PTSD. The examiner opined that the Veteran has a severe alcohol use disorder. The examiner opined that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity. The examiner noted a history of childhood anxiety and panic symptoms, noting that he continues to report symptoms of anxiety and panic. The Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment, impaired judgment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner found that it was not possible for her to separate his current mood and anxiety symptoms from his severe alcohol use, and that a review of his records indicates that his mental health symptoms largely remit or are reduced when he is not using alcohol. She opined that the Veteran’s symptoms were so intertwined with his substance use and childhood history of anxiety and panic that it would be mere speculation for her to diagnose the Veteran with PTSD. The examiner further noted that the results of the Veteran’s structured psychological testing were strongly suggestive of overreporting of symptoms and reporting of noncredible symptoms. Thus, none of the three VA examinations revealed symptoms such as 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; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name which cause total occupational and social impairment and could support a rating of 100% disabled. Similarly, the Veteran’s private treatment records indicate that he participated in individual therapy sessions, that he reported that he attended a veteran-led PTSD support group for six months, and that he experienced symptoms such as night terrors, problems in public places, isolation, sleep problems, depression, avoidance of trauma reminders, hypervigilance and intrusive thoughts, but did not indicate any symptoms such as present danger of hurting self or others disorientation to time and place, or memory loss for names of close relatives, own occupation or own name which cause total occupational and social impairment. The Board finds the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The records reflect the Veteran was able to maintain some relationships, and was able to complete massage school. The Board also finds the level of impairment caused by the Veteran’s symptoms, including the impaired judgment, flashbacks, panic attacks, difficulty sleeping and trouble with memory among other symptoms, more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The three VA examiners reviewed the record, performed mental status examinations and concluded that the condition did not result in total occupational and social impairment. Mental status examinations in VA and private treatment records and the Veteran’s three VA examinations indicate that the Veteran had, at most, symptoms which cause occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. 2. Entitlement to an earlier effective date for service connection for PTSD. The AOJ initially granted service connection for PTSD in an August 2015 rating decision. At that time, the AOJ granted a percent evaluation, effective January 30, 2015, the date the AOJ received the Veteran’s claim. In September 2015, the AOJ received an intent to file a claim, filed by a fully developed claim for an increased evaluation for PTSD in October 2015. Additionally, new VA treatment records and examinations were obtained in the appeal period. A subsequent February 2016 rating decision granted an increased evaluation to 70 percent, effective October 1, 2015, the date of the receipt of the fully developed claim. In February 2017, the AOJ received a fully developed claim for an increased rating for PTSD. During the course of processing this claim, the AOJ issued a May 2017 rating decision in which it found a Clear and Unmistakable Error in the assignment of the effective date and accordingly assigned a retroactive 70 percent evaluation from September 14, 2015, the date of receipt of the intent to file a claim. The Veteran timely filed a notice of disagreement and this appeal followed. During the pendency of this appeal, however, in an April 2019 DRO decision, the AOJ granted the 70 percent evaluation from January 30, 2015. Thus, the Veteran is service connected for PTSD effective January 30, 2015 and has been rated at 70% disabled effective for the entire period that he has been service connected. In his August 2017 Notice of Disagreement and his May 2019 VA Form 9, Substantive Appeal, the Veteran indicated he disagreed with the effective date of his award for service connection for PTSD, which is currently effective January 30, 2015. No further detail regarding his contention for an earlier effective date was provided. Notably, the substantive appeal was completed by the Veteran’s former private attorney. The Attorney did not submit additional written argument supporting the Veteran’s claims. See August 1, 2019 e-mail message from E.D. stating “the attorney has no intention of submitting a VA [F]orm 646.” In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance 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 the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b). Here, the Veteran’s claim for service connection for PTSD was received on January 30, 2015, more than nine years after his separation from service. The Veteran was awarded service connection for PTSD effective January 30, 2015, the day that the Veteran’s claim was received. Prior to January 30, 2015, there were no formal or informal claims for service connection for PTSD filed by the Veteran. The Veteran has received the earliest possible effective date pursuant to the law. Given that the Veteran has been awarded the earliest date possible for his award of service connection for PTSD, the Board is unable to grant an effective date prior to January 30, 2015 for the Veteran’s service-connected PTSD. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.