Citation Nr: 20021637 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-08 755 DATE: March 26, 2020 ORDER Entitlement to an earlier effective date prior to May 13, 2011 for service connection for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. Entitlement to an initial 70 percent rating, but no higher, for PTSD with major depressive disorder, prior to October 21, 2016 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a 100 percent rating for PTSD with major depressive disorder, from October 21, 2016 is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. VA received no communication from the Veteran or his representative that constitutes a formal claim or may be construed as an informal claim of service connection for PTSD with major depressive disorder prior to May 13, 2011. 2. Prior to October 21, 2016, the Veteran’s service-connected PTSD with major depressive disorder symptoms and overall impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment. 3. From October 21, 2016, the Veteran’s service-connected PTSD with major depressive disorder symptoms and overall impairment have more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 13, 2011 for the grant of service connection for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2019). 2. Prior to October 21, 2016, the criteria for an initial rating 70 percent rating, but no higher, for PTSD with major depressive disorder have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. From October 21, 2016 criteria for a 100 percent rating for PTSD with major depressive disorder have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1988 to January 1995. This matter came to the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for PTSD with major depressive disorder and assigned an initial rating of 50 percent effective May 13, 2011. The Veteran disagreed with the disability rating and effective date assigned and a Statement of the Case was issued in March 2019 addressing the matter. The Veteran timely appealed. In February 2020, the Veteran’s attorney submitted a notice withdrawing representation on behalf of the Veteran. However, after the agency of original jurisdiction has certified an appeal to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion. See 38 C.F.R. § 20.6. As no motion has been submitted showing good cause, the February 2020 notice is not valid, and the Veteran is considered to be represented by the attorney listed on the title page. Earlier Effective Date 1. PTSD with Major Depressive Disorder The Veteran contends that he is entitled to an effective date prior to May 13, 2011, for the grant of service connection for PTSD with major depressive disorder. The Veteran has not, however, provided any explanation as to the reasons for her belief that an earlier effective date is warranted. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply and are cited below. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. 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 1 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). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In this case, the Veteran’s original claim of service connection for stress was received on May 13, 2011. Her claim of service connection for PTSD with major depressive disorder was granted in an April 2018 rating decision, which also assigned an effective date of May 13, 2011, the date of the claim. The record contains no earlier statements or documents that could be construed as an informal claim and the Veteran has pointed to no such statements or documents. The Board acknowledges that the Veteran may have been experiencing symptoms prior to May 13, 2011. However, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability. Rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). Moreover, there is no language that points to records mentioning a psychiatric disorder in a way that, sympathetically read, is properly understood as seeking benefits for such a disorder and no evidence of reasonably identifiable in-service diagnoses of psychiatric disorders that predate the claim. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019); Sellers v. Wilkie, 30 Vet. App. 157, 163 (2018). Moreover, 38 C.F.R. § 3.157(b)(1) “makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability,” and this regulation is therefore not for application in this case. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). Based on both the law and the facts set forth above, an effective date prior to May 13, 2011, for the award of service connection for the Veteran’s PTSD with major depressive disorder is not warranted. Thus, the claim for an earlier effective date for the grant of service connection for PTSD with major depressive disorder must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Higher Ratings Disability ratings are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence ‘used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The criterion for rating PTSD disorder is contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent rating is warranted when there is objective evidence demonstrating 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, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is objective evidence demonstrating 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, or 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 100 percent rating is warranted when there is 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 and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the Court held that use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013), the Federal Circuit held 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.” The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. 2. PTSD with Major Depressive Disorder The Veteran seeks an initial rating in excess of 50 percent for PTSD with major depressive disorder. She contends that the rating currently assigned does not reflect the severity of the disability. Prior to October 21, 2016 For the period prior to October 21, 2016, the evidence of record indicates that the Veteran’s PTSD with major depressive disorder symptoms more nearly approximate the criteria for a 70 percent rating. An April 2013 private Disability Benefits Questionnaire (DBQ) indicates that the Veteran exhibited symptoms of depression, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. She had difficulty adapting to stressful circumstances, including a work or worklike setting. The examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with reduced reliability and productivity. A February 2014 VA examination report indicate the Veteran exhibited symptoms of exhibited symptoms of depression, anxiety, and chronic sleep impairment. The examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In a September 2016 letter, the Veteran’s sister reported that the Veteran was sad, argumentative, and confrontational. She would often change the subject, not follow the conversation actually taking place, change topics, then start an argument. She would accept invitations to go places, then would decline and stay home. The Veteran avoided having relationships and friendships, and always wanted to stay in. In a September 2016 letter, the Veteran’s mother reported that the Veteran stayed to herself and avoided involvement with her family. She was difficult to reach by phone, and when able to do so, out of nowhere, the Veteran goes into a rage and disconnect the call. She exhibited obsessive compulsive tendencies when it came to showering for long periods of time and using bleach. The Veteran’s mother noted that the Veteran was a loner, did not like to do anything, and avoided leaving home. In a September 2016 letter, the Veteran’s brother reported that the Veteran exhibited symptoms of depression, avoidance, and self-isolation. He indicated that the Veteran does not like to go anywhere, and during a recent visit, he could not get the Veteran to leave her house, even momentarily. The Veteran does not talk to anyone anymore, including her family. The Veteran’s brother noted that she washed her hands constantly, to the point of requiring ointment due to dryness. She was very sensitive to touching things and concerned with being cleaned. In this case, the evidence of record indicates that prior to October 21, 2016, the Veteran’s PTSD with major depressive disorder was manifested by symptoms and impairment more nearly approximate the criteria for an initial 70 percent rating, but no higher. For example, the April 2013 private examiner indicated that the Veteran had difficulty adapting to stressful circumstances, including a work or worklike setting. September 2016 lay statements indicates the Veteran exhibited an inability to establish and maintain effective relationships. Specifically, the Veteran was argumentative, confrontational, and exhibited rage with her family. She accepted invitations to go out with family, then would decline and stay home. The Veteran avoided relationships, friendships, and isolated herself. Based on the evidence of record, including the medical records and the credible lay statements, the Board finds that the Veteran’s symptoms and impairment more nearly approximate occupational and social impairment with deficiencies in most areas. The Veteran is not, however, entitled to a higher 100 percent rating prior to October 21, 2016. Specifically, the evidence of record does not demonstrate that the Veteran experienced symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting herself or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Moreover, on an October 2018 VA Form 21-4192 in connection with another claim, a former employer indicates the Veteran had been working as a teacher’s aide. The Board recognizes that an “effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested.” Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Here, the evidence of record demonstrates that prior to October 21, 2016, the impairment caused by the Veteran’s PTSD with major depressive disorder symptoms did not more nearly approximate the total occupational impairment required for a 100 percent rating under the general rating formula. For the foregoing reasons, an initial disability rating of 70 percent, but not higher, for the Veteran’s service-connected PTSD with major depressive disorder is warranted prior to October 21, 2016. As the preponderance of the evidence is against a higher rating, the benefit of the doubt is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. From October 21, 2016 For the period from October 21, 2016, the evidence of record indicates that the Veteran’s PTSD with major depressive disorder symptoms more nearly approximate the total occupational and social impairment required for a 100 percent rating. An October 21, 2016 private DBQ indicates the Veteran exhibited symptoms of depression, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression, and chronic sleep impairment. The Veteran had mild memory loss, impairment of short and long-term memory, and flattened affect. She had difficulty understanding complex commands, impaired judgment, impaired abstract thinking, and gross impairment in thought processes or communication. The Veteran exhibited disturbances of motivation and mood, obsessional rituals which interfere with routine activities. She had impaired impulse control, such as unprovoked irritability with periods of violence. There was persistent delusions or hallucinations. The Veteran had difficulty in establishing and maintaining effective work and social relationships. There was difficulty adapting to stressful circumstances, including a work or worklike setting. The Veteran exhibited an inability to establish and maintain effective relationships. The private psychologist concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with deficiencies in most areas. The private psychologist noted that the Veteran would continue to have difficulty sustaining the stress from a competitive work environment or be expected to engage or adequately function in gainful work activity due to her depressive disorder with anxious distress features. An August 2017 VA examination report indicate the Veteran exhibited symptoms of exhibited symptoms of depression, chronic sleep impairment, and disturbances of motivation and mood. An October 2018 VA examination report indicates the Veteran exhibited symptoms of depression, anxiety, chronic sleep impairment, and disturbances of motivation and mood. She had difficulty adapting to stressful circumstances, including a work or worklike setting. The examiner concluded that the Veteran’s PTSD symptoms were equivalent to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Based on the evidence of record, the Board finds that from October 21, 2016, the Veteran’s PTSD with major depressive disorder was manifested by symptoms and impairment that more nearly approximate the total occupational and social impairment required for a 100 percent rating. In this case, the October 2016 private DBQ shows the Veteran exhibited symptoms of gross impairment in thought processes or communication. She had persistent delusions or hallucinations. The Veteran consistently exhibited depression and anxiety. Additionally, the October 2016 private psychologist concluded that the Veteran would continue to have difficulty sustaining the stress from a competitive work environment or be expected to engage or adequately function in gainful work activity due to her depressive disorder with anxious distress features. Based on the evidence set forth above, the Board finds that from October 21, 2016 the Veteran’s service-connected PTSD with major depressive disorder symptoms have been productive of symptomatology and impairment that more nearly approximate total occupational and social impairment required for a 100 percent rating. A 100 percent rating is therefore warranted from October 21, 2016 for PTSD with major depressive disorder. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.