Citation Nr: 20042702 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 15-25 586 DATE: June 24, 2020 ORDER 1. For the period from July 25, 2012 to November 5, 2012, a rating of 30 percent, but no higher, for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD), is granted. 2. For the period from November 5, 2012 to August 30, 2017, a rating in excess of 30 percent for PTSD is denied. 3. For the period from August 30, 2017 forward, a rating of 50 percent, but no higher, for PTSD is granted. 4. An effective date July 25, 2012, but no earlier, for a 30 percent rating for the service-connected PTSD is granted. FINDINGS OF FACT 1. For the period from July 25, 2012 to November 5, 2012, the service-connected PTSD manifested in symptoms of such severity, frequency, and duration that more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. For the period from November 5, 2012 to August 30, 2017, the service-connected PTSD manifested in symptoms of such severity, frequency, and duration that more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 3. For the period from August 30, 3017 forward, the service-connected PTSD has manifested in symptoms of such severity, frequency, and duration that more nearly approximate occupational and social impairment with reduced reliability and productivity, and did not cause occupational and social impairment with deficiencies in most areas. 4. Entitlement to an increased 30 percent rating for the service-connected PTSD arose on July 25, 2012 when the Veteran was diagnosed with anxiety and moderate depression, which was within one year prior to the formal claim for an increased rating. 5. The Veteran filed a claim for an increased rating for the service-connected psychiatric disorder on November 5, 2012. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, for the period from July 25, 2012 to November 5, 2012, the criteria for an increased rating of 30 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. For the period from November 5, 2012 to August 30, 2017, the criteria for a disability rating in excess of 30 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. Resolving reasonable doubt in the Veteran’s favor, for the period from August 30, 2017 forward, the criteria for a higher disability rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 4. The criteria for an effective date of July 25, 2012, but no earlier, for an increased 30 percent rating for the service-connected PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2000 to May 2004. The Veteran declined a Board of Veterans’ Appeals (Board) hearing on the July 2015 VA Form 9 (Appeal to the Board). Previously, these issues were remanded by the Board for additional VA examinations to help assess the current severity of the service-connected PTSD. VA examinations were scheduled in May 2019 and August 2019. The Veteran did not appear for either of these VA examinations. The Board has proceeded to adjudicate the claims based on the current evidence of record. PTSD Rating Legal Authority The General Rating Formula for Mental Disorders provides that a 10 percent rating 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. 38 C.F.R. § 4.130. A 30 percent rating 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), 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 provided when there is 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 difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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 inability to establish and maintain effective relationships. A 100 percent rating requires evidence of 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 or place; and memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in the General Rating Formula for Mental Disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated 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.” It was further noted that “§ 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.” 1. Rating PTSD from July 25, 2012 to November 5, 2012 For the rating period on appeal from prior to November 5, 2012, the Veteran was in receipt of a 10 percent rating for the service-connected psychiatric disorder. For the rating period on appeal from November 5, 2012, the Veteran is in receipt of a 30 percent rating for the service-connected PTSD. 38 C.F.R. § 4.130. The Veteran generally contends that higher disability ratings are warranted throughout the stages on appeal. See March 2014 Notice of Disagreement. For the rating period on appeal from July 25, 2012 (as adjusted by this Board decision granting an earlier effective date) to November 5, 2012, the Board finds that the service-connected PTSD has manifested in symptoms that more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks to approximate a 30 percent rating. A July 2012 depression screening was suggestive of moderate depression, and the Veteran was also diagnosed with anxiety in July 2012. August 2012 VA treatment records show that while the Veteran received a formal diagnosis of PTSD, the Veteran denied a depressed mood, described his mood as “pretty good,” reported having friends, and was earning a living through current employment. For these reasons, the Board finds that for the rating period from July 25, 2012 to November 5, 2012, the service-connected PTSD did not more nearly approximate occupational and social impairment with reduced reliability and productivity. The Veteran was earning a living through current employment, was able to maintain friendships, and denied mood problems. Thus, the Board finds that a higher 50 percent rating is not warranted for the period from July 25, 2012 to November 5, 2012. 2. Rating PTSD from November 5, 2012 to August 30, 2017 For the rating period on appeal from November 5, 2012 to August 30, 2017, the Board finds that the service-connected PTSD has manifested in symptoms that more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is contemplated by a 30 percent disability rating. A November 2013 VA examiner documented that the Veteran experienced anxiety, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. The VA examiner noted that “with regard to routine activities of daily living, [the Veteran] denies functional limitations of routine activities due to psychiatric problems, he is capable of self-care.” At this examination, the Veteran reported that the severity of the symptoms was diminishing, but that he tended to self-isolate. The Veteran denied suicide attempts and stated that since leaving active service, he had worked full time as an electrician and was getting along well with his coworkers. The Veteran also reported having friends and enjoying going to the gym, exercising, and watching sports. For these reasons, the Board finds that for the period from November 5, 2012 to August 30, 2017, the service-connected PTSD did not more nearly approximate occupational and social impairment with reduced reliability and productivity. The Veteran described getting along well with his coworkers, maintaining friendships, and enjoying hobbies such as exercising and watching sports. The Veteran also reported that psychiatric symptoms did not cause functional limitations in routine activities of daily living. Thus, the Board finds that a higher, 50 percent rating is not warranted for the period from November 5, 2012 to August 30, 2017. 3. Rating PTSD from August 30, 2017 Forward For the rating period on appeal from August 30, 3017 forward, the Board finds that the service-connected PTSD has manifested in symptoms that more nearly approximate occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances to warrant a higher 50 percent rating. On a July 2015 VA Form 9, the Veteran reported that his symptoms had worsened, and that he was experiencing depression and anxiety which caused him to miss days of work, impaired short-term memory, difficulty maintaining relationships, decreased productivity at work, periods of unprovoked irritability with periods of violence, spatial disorientation, suicidal ideation, and periods of neglect of personal appearance. VA treatment records show a diagnosis of depression on August 30, 2017. The Board has considered the Veteran’s assertion that his symptoms had worsened, and notes that two new VA examinations were ordered in May 2019 and August 2019 in response to this report of worsening by the Veteran; however, VA records show that the Veteran did not appear for either examination. Although a current VA examination is not available to provide a more complete picture of current symptoms, the Board has nevertheless afforded the Veteran the benefit of the doubt to find that the service-connected PTSD symptoms have increased in severity to produce occupational and social impairment to warrant an increased 50 percent rating from August 30, 2017. August 2017 VA treatment records show a positive screening for depression and show that the Veteran reported suicidal ideation in the past with no plan. Additional August 2017 VA treatment records also show that the Veteran denied thoughts of taking his own life and denied prior suicide attempts. These records also show that while the Veteran was diagnosed with both PTSD and depression, he declined a psychiatry consult and was reluctant to try medication. May 2019 VA counseling records show that the Veteran reported severe anxiety and depression during gaps in employment. On a May 2019 Rehabilitation Needs Inventory, the Veteran reported that PTSD has affected his job performance and caused missed work time. Specifically, August 2017 VA treatment and rehabilitation records show a diagnosis of depression, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, as PTSD symptoms caused decreased job performance and missed work time. To the extent that the Veteran reported prior suicidal ideation in August 2017, the Board finds that the suicidal ideation was limited in severity, frequency, and duration in that the suicidal ideation was not accompanied by a plan and the Veteran later denied thoughts of suicide or prior suicide attempts. To the extent that the Veteran reported periods of unprovoked irritability with periods of violence, spatial disorientation, and periods of neglect of personal appearance, the Board does not find these reports credible, as they are inconsistent with and outweighed by other evidence of record, including August 2017 VA treatment records, which show that the Veteran was alert and oriented, declined a psychiatry consultation, answered “No” to all suicide risk evaluation questions, and declined further intervention or evaluation, including medication to treat current psychiatric symptoms. Based on the foregoing evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that, for the entire rating period on appeal from August 30, 2017 forward, the criteria for a higher disability rating of 50 percent under Diagnostic Code 9411 have been met. 38 C.F.R. §§ 4.3, 4.7. For these reasons also, the Board finds that for the entire rating period on appeal from August 30, 2017, the lay and medical evidence of record does not demonstrate that the service-connected PTSD has manifested in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood to warrant a higher 70 percent disability rating under Diagnostic Code 9411. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Earlier Effective Date Legal Authority The effective date of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date a veteran applied for benefits. See Roper v. Nicholson, 20 Vet. App. 173 (2006). Determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). An informal claim is any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). To obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of the claim. If the evidence showed that the increase occurred more than one year prior to the date of the claim, then the effective date is no earlier than the date of the claim. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (holding that, in order to obtain an increased disability rating earlier than the date of the claim for increase, the evidence must show that the increase in disability occurred within the one year period prior to the date of claim for increase); VAOPGCPREC 12-98. Reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen if they relate to a disability which may establish entitlement. 38 C.F.R. § 3.157(a). Significantly, receipt of such reports of examination or hospitalization may only be accepted as an informal claim for increased benefits if a formal claim for compensation has been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b). 4. Effective Date for Service Connection for PTSD The Veteran requests an earlier effective date than August 2, 2012 for the service-connected PTSD. See March 2014 Notice of Disagreement. Specifically, the Veteran asserts that PTSD symptoms have been present since 2004, while a 30 percent disability rating had been assigned only from 2012. See March 2014 Notice of Disagreement. A December 2006 rating decision shows that the Veteran received service connection for adjustment disorder with an effective date of August 15, 2006. The Veteran did not appeal the effective date for the grant of service connection or appeal for a higher initial rating; therefore, both became final. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.1103. The Veteran did not subsequently file a claim for an increased disability rating until November 2012. For this reason, an earlier effective date during 2004 is not available. See Roper v. Nicholson, 20 Vet. App. 173 (2006). 38 C.F.R. § 3.400. As discussed above, the Veteran first filed a claim for an increased compensable rating for the service-connected psychiatric disorder on November 5, 2012. In evaluating the claim, the VA regional office (RO) awarded a higher 10 percent rating effective August 2, 2012, the date on which the Veteran first received a diagnosis of PTSD, finding that entitlement arose within one year prior to the claim for an increased rating. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The evidence during the one-year period prior to receipt of the claim for increase on November 5, 2012 shows symptoms that warrant an earlier effective date of July 25, 2012. A July 2012 depression screening was suggestive of moderate depression, and the Veteran was also diagnosed with anxiety in July 2012. This tends to show that entitlement to an increased 30 percent rating arose on July 25, 2012, prior to the currently assigned effective date of August 2, 2012, because the Veteran had been diagnosed with depression and moderate anxiety as of this date, which was within one year prior to the formal claim for an increased rating. For these reasons, the Board finds that the criteria for an effective date of July 25, 2012, but no earlier, for an increased 30 percent rating for an acquired psychiatric disorder have been met. See Gaston, 605 F.3d at 984 (holding that, in order to obtain an increased disability rating earlier than the date of the claim for increase, the evidence must show that the increase in disability occurred within the one year period prior to the date of claim for increase); VAOPGCPREC 12-98. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.