Citation Nr: 21000126 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 19-28 514 DATE: January 4, 2021 ORDER Entitlement to an effective date earlier than July 12, 2016 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial disability rating of 70 percent for posttraumatic stress disorder (PTSD) is granted on and after July 12, 2016, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Service connection for a skin disability is remanded. FINDINGS OF FACT 1. There is no indication of a claim of service connection for PTSD prior to July 12, 2016. 2. Throughout the period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to July 12, 2016, for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5101, 5107, 5108, 5110, 7105 (2012); 38 C.F.R. §§ 3.104, 3.400, 19.52, 20.1103 (2019). 2. With resolution of reasonable doubt in the Veteran’s favor, on and after July 12, 2016, the criteria for a disability rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from December 1967 to July 1969, including service in the Vietnam War. The Veteran testified before the undersigned Veterans Law Judge during a 2019 hearing. These matters are on appeal from March 2018 and April 2018 rating decisions. The Veteran’s claim for service connection for a skin rash has been recharacterized as a skin disability, to include a skin rash.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Neither the Veteran nor his attorney have raised any issue with the duty to notify or duty to assist with regard to the issues being decided below.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. PTSD – Effective Date Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on (1) an original claim, (2) a claim reopened after final adjudication, or (3) a claim for increase, is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Veteran first submitted a claim for entitlement to service connection for PTSD on July 12, 2016. The Board has reviewed the claims file for any document, submitted before the Veteran’s July 12, 2016, claim, that could be considered a claim for service connection for a psychiatric disability. The Board has found no communication from the Veteran to VA that could be construed as a formal or informal claim of entitlement to service connection for a psychiatric disability prior to the claim submitted on July 12, 2016. Moreover, neither the Veteran nor his attorney assert that the Veteran filed an informal or formal claim during that time. For those reasons, the Board concludes that the Veteran is not entitled to an effective date earlier than July 12, 2016, for service connection for PTSD, which is the date of the claim that led to the grant of service connection. 2. PTSD – Increased Rating The Veteran contends that his PTSD warrants a higher rating than that currently assigned. It is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, with a 50 percent rating on and after July 12, 2016. The full period of service connection is on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2019). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity from the effective date for the award of service connection.  Fenderson v. West, 12 Vet. App. 119 (1999).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 provides that a 50 percent rating is warranted for 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; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted for 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 situations (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order 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; 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, occupation, or own name. Id. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. See Vazquez–Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). The Veteran was afforded a VA examination in March 2018, by a psychologist. The psychologist diagnosed PTSD. The Veteran reported that he got married soon after his separation from active duty service but divorced 6 years later, had never remarried, and avoided romantic relationships; he added that he “can’t get along with them, [he] just can’t.” He also reported that he had three adult children, two of whom lived with him, and that he also had two grandchildren who lived with him, but that his children avoided him “as much as they can” because he “can’t get warm with them.” He also reported having one close friend. The Veteran reported nightmares resulting in waking up terrified and having to perform a security check on the house. He also reported that his grandchildren could trigger anxiety when they yelled and that he cannot be around children in restaurants. He added that he avoided crowds and movie theaters and had to sit with his back to the wall. He also reported that he had broken his computer due to anger. The Veteran reported that he had worked as an electrician before and after his active duty service and that he does “odd jobs here and there now, but it’s too hard on [his] body.” He also reported having been charged with two misdemeanors for battery on police officers, but did not report whether this took place during the period on appeal. The psychologist listed the Veteran’s symptoms for rating purposes as anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. The Veteran was neatly groomed, his psychomotor activity was unremarkable, his speech was clear, coherent, and spontaneous, his affect was appropriate but irritable, his attention was intact, he was oriented, and his thought process and content were unremarkable. There was no evidence of delusions, hallucinations, inappropriate behavior, obsessive or ritualistic behavior, or lack of judgment or insight. He denied homicidal or suicidal thoughts. The psychologist evaluated the Veteran’s impulse control as “good, with no episodes of physical violence,” but did not reconcile this with the report of the broken computer. The psychologist characterized the Veteran’s overall level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating. Based on the evidence described above, the Board finds that, affording the Veteran the benefit of the doubt, his psychiatric symptoms and overall disability picture warrant an evaluation of 70 percent for PTSD throughout the period on appeal. During that period, the record contains evidence of unprovoked irritability with periods of violence, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. For these reasons, the Board finds that Veteran’s symptoms most nearly approximate those that warrant a 70 percent rating throughout the period on appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran’s symptoms at any point during the period on appeal. The record does not contain evidence of any of the symptoms listed in the criteria for a 100 percent rating or symptoms similar to those listed in the 100 percent rating criteria, with the possible exception of danger of harm to himself or others. However, even the constant presence of some symptoms listed in the criteria for a 100 percent rating would be insufficient because the overall guiding criterion for a 100 percent rating is that both total occupational and total social impairment be present. 38 C.F.R. § 4.130; see, e.g., Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In this case, the Veteran’s symptoms have not been shown to be so severe that he has both total occupational and total social impairment. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The Veteran has reported that he currently works “odd jobs here and there,” but it is unnecessary for the Board to determine whether this constitutes total occupational impairment because the Veteran has ascribed limitations on his ability to work to physical pain, not psychiatric symptoms. He has therefore not demonstrated total occupational impairment resulting from his service-connected psychiatric disability. In addition, total social impairment is not shown. The Veteran has been able to maintain some personal relationships, specifically with his children, grandchildren, and one close friend. The Board acknowledges that these relationships are sometimes strained or distant, but that is reflected in the current 70 percent rating for “deficiencies in most areas,” the criteria for which include inability to establish and maintain effective relationships and difficulty in adapting to stressful circumstances including work or a worklike setting. Because the Veteran is not totally socially or occupationally impaired as a result of his service-connected PTSD, a 100 percent rating is not warranted. The Board also notes that many of the Veteran’s reported symptoms throughout the period on appeal are included among those specifically contemplated in the General Rating Formula for Mental Disorders, pursuant to which a 70 percent disability rating has been assigned. See 38 C.F.R. § 4.130. Importantly, the Board notes that symptoms noted in the rating schedule 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 disability rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In other words, symptoms comparable to those listed in the General Rating Formula could be considered in evaluating the Veteran’s extent of occupational and social impairment. Accordingly, the existence and severity of the Veteran’s psychiatric symptoms are adequately contemplated by the 70 percent rating criteria. As noted above, many of the symptoms are specifically listed in the General Rating Formula for Mental Disorders, and the others are common psychiatric symptoms that-while not specifically listed-are comparable indicators of the type of occupational and social impairment contemplated in the Rating Formula. The Board has also considered the Veteran’s assertions regarding his psychiatric symptoms, which he is competent to provide. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The lay evidence is also credible. The symptoms described in those lay statements comport with the 70 percent rating that has now been assigned. However, these lay statements do not provide any basis upon which to assign a higher rating because they do not reflect total social or occupational impairment as a result of PTSD. In sum, the Board finds that, resolving reasonable doubt in the Veteran’s favor, his impairment due to PTSD has been most consistent with a 70 percent disability rating throughout the period on appeal. REASONS FOR REMAND 1. Service connection for a skin disability is remanded. VA must provide an examination with regard to a claim for disability compensation when there is competent evidence of a disability that may be associated with an in-service disease, injury or event, but there is insufficient information to make a decision on the claim. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran has had a diagnosis of pruritus and a finding of excoriation during the period on appeal, which he ascribes to herbicide exposure and to his service-connected PTSD. In the January 2020 substantive appeal (VA Form 9), the Veteran’s attorney contended that a “link between dioxin exposure and skin disorders is medically well established” and that “medical studies support a nexus connection between PTSD and dermatologic symptoms, including excoriation and pruritus.” Because the Veteran served in the Republic of Vietnam during the Vietnam Era, he is presumed to have been exposed to herbicides. 38 C.F.R. § 3.307 (2019). The Board notes that, other than chloracne or other acneform diseases consistent with chloracne, skin disabilities are not among the disorders for which service connection is presumed given presumptive exposure to herbicides. 38 C.F.R. § 3.309(e) (2018). However, despite the presumptive regulations, a Veteran may establish service connection based on exposure to herbicides with proof of actual, direct causation. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, the fact that a veteran does not meet the requirements for service connection on a presumptive basis does not in and of itself preclude the establishment of service connection, as entitlement may alternatively be established on a direct basis. The threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event, injury, or disease is a low one. Id., at 83. This evidence meets that threshold, and an examination is necessary. The matters are REMANDED for the following action: 1. Schedule the Veteran for a physical or telehealth examination with an appropriate clinician for skin disabilities. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current skin disability had its origin in service or is related to the Veteran’s active service, including exposure to herbicides. b. Whether it is as least as likely as not that any current skin disability was caused by the Veteran’s service-connected PTSD. c. Whether it is as least as likely as not that any current skin disability was aggravated beyond its natural progression by the Veteran’s service-connected PTSD. The clinician is advised that service connection can be established due to herbicide exposure by direct proof of causation, and that it is insufficient to conclude that there is no direct causation simply because the Veteran’s skin disability is not on the list of diseases and conditions that are presumptively associated with exposure to herbicide agents. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A December 2016 VA treatment record nothing the Veteran’s report of pruritus of both upper extremities, with examination findings of excoriation and a diagnosis of pruritus. b. The Veteran’s statement in his June 2018 Notice of Disagreement (NOD) that his skin disability has been continuous since active duty service and that there “is no genetic reason for his current skin disorder.” c. A June 2018 VA treatment record noting the Veteran’s report of ongoing intermittent itching and burning in his legs since his service in Vietnam. d. The Veteran’s attorney’s contentions in the January 2020 substantive appeal (VA Form 9) that a “link between dioxin exposure and skin disorders is medically well established” and that “medical studies support a nexus connection between PTSD and dermatologic symptoms, including excoriation and pruritus.” e. A May 2017 article, the abstract of which was submitted by the Veteran in January 2020, titled “Posttraumatic stress disorder (PTSD) and the The rationale for any opinion expressed should be provided. Note that a lack of documented treatment in service, while probative, cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Ensure that the directives specified in this remand have been implemented.  If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998).   (Continued on the next page)   3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.