Citation Nr: 20021119 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-39 926A DATE: March 24, 2020 ORDER Prior to October 15, 2019, entitlement to an initial disability rating in excess of 70 percent for the Veteran’s service-connected acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an earlier effective date for the award of entitlement to service connection for PTSD is remanded. FINDING OF FACT The overall evidentiary record shows that the severity of the Veteran’s disability most closely approximates the criteria for a 70 percent disability evaluation prior to October 15, 2019. CONCLUSION OF LAW The criteria for an initial rating for PTSD in excess of 70 percent for the period prior to October 15, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REFERRED CLAIM As was noted in the August 2019 Board decision, the Veteran raised a potential claim for service connection for chest pain/tightness in chest, a respiratory condition, nail deformities, headaches and sweating. To date, the regional office has taken no action on those claims. Accordingly, those claims are referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38C.F.R. §19.9(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1978 to September 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs Regional Office (RO). By way of background, VA received the service connection claim for PTSD on January 11, 2011. A July 2013 rating decision denied the service connection claim for PTSD. Based on new and material evidence received within the appeal period, the RO readjudicated the claim in a February 2014 rating decision which granted entitlement to service connection for mild depressive disorder, anxiety, and polysubstance abuse (hereafter, referred to as acquired psychiatric disability) and assigned a 50 percent rating effective January 22, 2011. This date was later corrected to the proper date of January 11, 2011. The grant did not include PTSD at this time. In May 2014, the Veteran requested an increase for his service-connected acquired psychiatric disability. In a March 2015 rating decision, the RO continued the 50 percent rating for the acquired psychiatric disability, while denying the claim for PTSD due to no diagnosis. In November 2015, the Veteran filed another a claim seeking service connection for PTSD, which was denied in a March 2016 rating decision. In September 2016, the Veteran again filed a claim seeking service connection for PTSD, which was denied in the November 2016 rating decision. The Veteran filed a timely NOD to the November 2016 rating decision. In a June 2017 rating decision, the RO combined all psychiatric disabilities into one issue which included PTSD and increased the rating to 70 percent effective January 11, 2011, the date the VA received the claim. The Veteran filed a lay statement and an incomplete NOD in October 2017 that was subsequently determined to be a valid NOD for the increased rating claim adjudicated in the June 2017 Statement of the Case (SOC). The Board remanded the claim in August 2019 for additional evidentiary development. After conducting additional development pursuant to the Board remand, the AOJ granted the increased rating claim for the acquired psychiatric disability, to include PTSD in an October 2019 rating decision and assigned a 100 percent rating effective October 15, 2019, the date the medical evidence first showed a rating commensurate to 100 percent due to PTSD (the date entitlement arose). The Veteran contends he is entitled to a rating in excess of 70 percent prior to October 15, 2019. 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). 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. From January 11, 2011, the Veteran’s PTSD was rated at 70 percent disabling under Diagnostic Code 9411. 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 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. Evidence of record does not show total occupational and social impairment. In fact, a March 2013 psychiatry note reports “less mood instability” and the Veteran “feels that he is functioning well.” Further, a May 2013 psychiatry note reports “mood is generally improving” and no suicidal or homicidal ideations. The VA examination dated March 2015 noted 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. The Board notes that in October 2017, the Veteran asserted worsening symptoms including suicidal ideation and thoughts of harming other people. In a January 2018 VA Form 9, the Veteran asserted worsening anger and an inability to retain healthy relationships. A December 2017 VA mental health treatment record shows the Veteran reported having had thoughts of harming himself several months prior. However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran expressed that he has not had those thoughts since then and has not had any recent thoughts of harming himself or others. This was further reflected in a July 2019 VA treatment record where the Veteran denied any suicidal ideations. There is additional evidence of record related to the Veteran’s level of occupational and social impairment. A June 2017 VA exam notes that the Veteran is capable of managing his financial affairs. The examiner noted an inability to establish and maintain effective relationships, but simultaneously stated that the Veteran has a close relationship with his children and grandchildren and “good connections with friends”. In a later July 2019 VA treatment record, the Veteran explained that he finds enjoyment with interacting and helping Veterans, and he is open to finding ways to increase the social aspect of his life. In assessing the Veteran’s symptomatology in toto as to any given portion of the period on appeal, the Board finds that none of the findings rendered by previous VA examiners, nor any other relevant evidence of record informs the Board of a symptomatology that warrants a rating in excess of what has been contemplated and assigned by the highest rating on the rating scale. The evidence shows there is not persistent danger of hurting himself, persistent delusions or hallucinations, or inability to perform activities of daily living, to name a few of the criteria. For the reasons stated above, the Board finds that the weight of the evidence establishes that the Veteran’s PTSD has most closely approximated the 70 percent criteria for the entire appeal period and his appeal seeking a higher initial disability rating is denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In June 2017, the RO issued a rating decision that granted service connection for PTSD and increased the disability rating of his service-connected psychiatric disorder from 50 percent to 70 percent, effective January 11, 2011. In October 2017, the Veteran filed a notice of disagreement (NOD) with an attached letter asserting entitlement to an earlier effective date for the grant of service connection for PTSD from the June 2017 rating decision. The Board notes that in Rudd v. Nicholson, the Court held that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision. 20 Vet. App. 296, 299-300 (2006). With respect to a final VA decision assigning an effective date for service connection, “because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which the claim was received, 38 U.S.C. § 5110 (a), only a request for revision based on clear and unmistakable error [CUE] could result in the assignment of [an] earlier effective [date].” Id. at 299. The Veteran was granted entitlement to service connection for an acquired psychiatric disability effective January 11, 2011 in a February 2014 rating decision and he did not timely appeal the effective date for the award of service connection. Normally, a subsequent freestanding claim would not be permissible under Rudd. The Board finds that the present case is distinguishable from Rudd, however, because the RO treated the Veteran’s September 2016 claim seeking entitlement to service connection for PTSD as distinct from his service-connected acquired psychiatric disability. In the June 2017 rating decision, the RO ultimately granted service connection for PTSD, and granted a higher 70 percent rating, effective January 11, 2011, for the combined service-connected claim of major depressive disorder with anxiety disorder NOS and polysubstance abuse now to include posttraumatic stress disorder. The August 2019 Board decision conceded that the October 2017 Notice of Disagreement placed the issue of entitlement to any earlier effective date for the grant of entitlement to service connection in dispute, but erroneously referred the matter to the RO for initial adjudication. However, the October 2017 Notice of Disagreement conferred the Board jurisdiction over the issue of entitlement to effective date earlier than January 11, 2011 for the grant of service connection for PTSD, and this claim must be remanded for issuance of a Statement of the Case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The matter is REMANDED for the following action: (Continued on the next page)   Issue an SOC for the Veteran’s earlier effective date claim referenced in the October 2017 NOD. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, Law Clerk 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.