Citation Nr: 20038048 Decision Date: 06/03/20 Archive Date: 06/03/20 DOCKET NO. 19-16 803 DATE: June 3, 2020 ORDER Entitlement to an increased rating of 100 percent for posttraumatic stress disorder (PTSD) is granted, effective August 15, 2017, subject to the rules governing the payment of monetary benefits. Entitlement to an effective date earlier than August 15, 2017, for the grant of service connection for PTSD is denied. REMANDED Entitlement to service connection for hypothyroidism is remanded. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, secondary to hypothyroidism is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate total occupational and social impairment, effective August 15, 2017. 2. The Veteran’s original Application for Compensation or Pension for PTSD was received by the Agency of Original Jurisdiction (AOJ) on August 15, 2017. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 100 percent for PTSD have been met, effective August 15, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for an effective date earlier than August 15, 2017, for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1965 to August 1967, which included service in the Republic of Vietnam from November 1966 to August 1967. This case is on appeal of a November 2017 rating decision from the Agency of Original Jurisdiction (AOJ). The Veteran submitted buddy statements and a Disability Benefits Questionnaire pertaining to his PTSD in June 2019 without AOJ review. As he did not request AOJ review, however, the Board may consider this evidence in the first instance. Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, if the claimant or the claimant’s representative submits evidence to the AOJ or the Board for consideration in connection with the issues on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or a supplemental statement of the case considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. 1. Entitlement to an increased rating higher than 10 percent for PTSD The Veteran contends that his PTSD symptoms are more severe than warranted for a 10 percent rating. He presently has a 10 percent disability rating for PTSD, effective August 15, 2017. 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 in excess of 10 percent. The Board concludes that the Veteran’s PTSD symptoms caused the level of impairment required for a disability rating of 100 percent, effective for the entire appeal. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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. An October 2017 VA Disability Benefits Questionnaire (DBQ) filled out by a VA-contracted psychologist, shows that the Veteran had irritable behavior and angry outbursts with little or no provocation, typically expressed as verbal or physical aggression toward others. He also had a depressed mood, short temper, hypervigilance, and nightmares. An April 2019 VA DBQ, filled out by a private psychologist, notes that the Veteran had PTSD with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/ or mood. Socially, it was noted that the Veteran had been married for 51 years and had two adult children. However, he was socially isolated and withdrawn. Additional symptoms included a depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, impairment of short and long term memory, flattened affect, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfered with routine activities, impaired impulse control, such as unprovoked periods of irritability with periods of violence, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. With respect to activities of daily living, the Veteran had been married for 51 years and had two adult children, but he kept his struggles to himself, not wanting to bother others. He was socially isolated and withdrawn, and had assistance performing his daily living tasks. In fact, his wife did the shopping, meal preparation, maintained the household chores, managed the finances, and reminded him to shower, shave, and get a haircut. He showered approximately twice a week and remarked that he walked around the house in his pajamas. The psychologist found that the Veteran’s PTSD and social impairment were emotionally debilitating and that individuals with the Veteran’s symptoms typically had suicidal ideation, few friends, and were unable to keep a job. The Veteran reported suicidal ideation but denied plan or intent. He also reported auditory and visual hallucinations consisting of hearing noises/ voices/ conversations and seeing shadow figures when nothing was present. He suffered from chronic sleep impairment including insomnia, broken sleep, and nightmares. He described near-continuous panic or depression affecting his ability to function effectively, disturbances of motivation and mood, sense of foreshortened future, difficulty concentrating, irritability, difficulty in establishing and maintaining relationships, difficulty adapting to stressful circumstances, including work, mild memory loss, impaired short and long-term memory, obsessional rituals that interfered with routine activities, impaired impulse control, neglect of personal hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, and speech intermittently illogical/ irrelevant/ obscure. Occupationally, the psychologist found that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. The Veteran described not getting enough restful sleep and feeling fatigued nearly every day, which would be a safety issue in the workplace. He reported difficulty remembering events, requests, and occasionally forgetting details or sequencing that would affect his employment. He had difficulty maintaining and sustaining a steady mood and this inconsistent mood lead to problems in his social and work life. He reported that he had not been able to have meaningful occupational or social relationships and believed that he could not let others into his life because of issues with trust. He remarked that he felt nervous and worried and struggled with ongoing anxiety issues; this sort of anxiety was a safety hazard on the job. With poor interpersonal skills and workplace trust issues, the Veteran would have an increase in paranoia and would struggle with appropriate work interaction. He had physical signs of depression that interfered in daily work, as these signs manifested as extreme fatigue, hypersomnia, appetite issues, weight fluctuation, and emotional outbursts. Additionally, suicidal ideation caused problems within the workplace through a manifestation of fatigue and lack of concentration. The psychologist also found that the Veteran’s symptoms had been in existence since his return from military service and had continued through the date of filing for benefits. The Veteran’s wife submitted a statement dated in March 2019 noting that she had been married to the Veteran for 51 years and that he had suffered greatly over the years since service, leaving him with panic attacks, lack of a social life, lack of motivation, and lack of care for his appearance. She went on to go through detailed examples of what she observed. The Veteran’s sister submitted a statement in May 2018 that the Veteran came back from service a different person. He would get moody and sullen and had less and less interest in his former friends and activities. He seemed depressed and anxious. He also was quick to anger and seemed jittery and irritable toward others when he was out. Based on the findings on the April 2019 VA Disability Benefits Questionnaire, the Board finds that the Veteran is entitled to a total disability rating for his PTSD. Specifically, based on the findings of the private psychologist, the Veteran meets some of the criteria for a 100 percent rating under Diagnostic Code 9411, including persistent delusions or hallucinations, and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. Socially, he was found to be socially isolated and withdrawn. While he had been married for 51 years, he did not have any friends; and his wife assisted him in performing his daily living tasks. He also reported auditory and visual hallucinations consisting of hearing noises/voices/conversations and seeing shadow figures when nothing was present. Occupationally, he was found unable to sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. Overall, these symptoms show the Veteran met the criteria for a 100 percent rating for PTSD for total occupational and social impairment. Additionally, notwithstanding the findings on the October 2017 DBQ, based on the April 2019 psychologist’s finding that the Veteran’s symptoms had been in existence since his return from military service and had continued through the date of filing for benefits; and the Veteran’s wife’s and sister’s statements of having witnessed the Veteran’s PTSD symptoms since service, all doubt is resolved in the Veteran’s favor that the severity of his symptoms has existed since he filed his claim in August 2017. In short, the severity, frequency, and duration of the Veteran’s PTSD symptoms resulted in the level of impairment required for a 100 percent rating, effective for the entire appeal, i.e., since August 15, 2017. 2. Entitlement to an effective date earlier than August 15, 2017, for the grant of service connection for PTSD The Veteran contends that he should have an effective date earlier than August 15, 2017, for the grant of service connection for PTSD. He has submitted statements from his wife, friend, and sister that they had noticed the Veteran’s PTSD symptoms since his military service. Generally, the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For direct service connection claims, the effective date is 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, date of receipt of claim, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). The question for the Board is whether the record shows that the Veteran filed a service connection claim for PTSD that was received by the AOJ prior to August 15, 2017. The Board concludes that, while the Veteran might have had symptoms of PTSD prior to the date the AOJ received his claim in August 2017, there is no record that he filed a service connection claim for PTSD prior to August 15, 2017. He was separated from service in August 1967. He did not file a service connection claim for PTSD within one year of his separation from service; or until August 2017. While the Veteran’s friend and family have asserted that he had symptoms of PTSD prior to the date of his claim, entitlement to disability benefits for purposes of service connection does not arise from the date the symptoms first manifest for the disability at issue, but rather the date of receipt of the claim; or the date entitlement arose, whichever is later. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400 (o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are applicable in the present case. Id. at 57,686. Under the former regulations, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). However, none of the correspondence received prior to August 15, 2017 indicates any desire on the part of the Veteran to file a service connection claim for PTSD. The Veteran does not contend otherwise. Accordingly, the preponderance of the evidence is against the Veteran’s claim. REASONS FOR REMAND 1. Entitlement to service connection for hypothyroidism is remanded. 2. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, secondary to hypothyroidism is remanded. The Board cannot make a fully-informed decision on the issues of service connection for hypothyroidism and peripheral neuropathy of the bilateral lower extremities, because no VA examiner has opined whether either of these disabilities is related to his military service, including his presumed exposure to herbicides during service. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2017 to present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any hypothyroidism and/ or peripheral neuropathy of the bilateral lower extremities. The examiner should: (a.) Specifically state whether the Veteran has a diagnosis of early-onset peripheral neuropathy of the bilateral lower extremities; if the Veteran has a diagnosis other than early-onset peripheral neuropathy, opine whether it is at least as likely as not (50 percent probability or greater) that the diagnosed disability had its onset during service, or is otherwise related to an in-service injury, event, or disease, to include his presumed herbicide agent exposure, or is secondary to (proximately due to or aggravated by) hypothyroidism. (b.) Opine whether hypothyroidism at least as likely as not had its onset in service, was manifest to a compensable degree within one year of service discharge, or is otherwise related to an in-service injury, event, or disease, including his presumed herbicide agent exposure. The rationale for all opinions must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and a rationale provided for that conclusion. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.