Citation Nr: 21000648 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 17-39 995 DATE: January 5, 2021 ORDER Entitlement to an earlier effective date than July 25, 2016, for a 70 percent rating for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, and cocaine-use disorder is denied. FINDINGS OF FACT 1. For the period within one year of the August 2004 claim and the March 2015 rating decision, the severity, frequency, and duration of the signs and symptoms of the Veteran’s psychiatric disability more closely approximated symptoms that were either contemplated by or were more consistent with a 50 percent rating, and also resulted in a level of impairment that more closely approximated the level of impairment associated with a 50 percent rating. 2. For the period up to one year prior to the April 2015 supplemental claim, the severity, frequency, and duration of the Veteran’s psychiatric symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an earlier effective date than July 25, 2016, for a 70 percent rating for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, and cocaine-use disorder have not been met. 38 U.S.C. § 5110 5103, 5103A, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, had active service in the United States Army from March 1989 to July 1993, for which, in addition to his other decorations, he was awarded the Bronze Star Medal with V-device and the Combat Medical Badge. In June 2019, the Board denied entitlement to an earlier effective date than July 25, 2016 for an increased disability evaluation of 70 percent for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, and cocaine-use disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued an Order granting a Joint Motion for Remand (JMR) by the parties, vacating the decision with respect to the issue described above, and remanding the matter to the Board for further action. 1. Entitlement to an earlier effective date than July 25, 2016, for a 70 percent rating for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), major depressive disorder, and cocaine-use disorder. The Veteran contends that his 70 percent rating for an acquired psychiatric disorder should be effective earlier than July 25, 2016. The June 2020 JMR directed the Board to discuss the pending March 2015 Rating Decision and whether an earlier effective date is warranted pursuant to 38 C.F.R. § 3.156(b) based on the evidence of record. In the alternative, the JMR stated the Board must discuss whether an earlier effective date is warranted at any point up to one year before the Veteran’s April 2015 supplemental claim was received by VA. The JMR relied in large part on Turner v. Shulkin, 29 Vet. App. 207, 211 (2018). Subsequently, in August 2020, the Federal Circuit reversed Turner in relevant part and held, in part, that a claim will remain open until VA determines whether post-decision evidence received within the one-year period is new and material under 38 C.F.R. § 3.156(b). Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020). The Board is generally obligated to abide by the terms of a JMR. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). The Board is also obligated to critically examine the record based on the current date of the law. Fletcher v. Derwinski, 1 Vet. App. 394, 397 (1991). Based on this recent decision, the Board will apply Lang. The Board’s review of the Veteran’s file shows that this holding applies to both a December 2004 and an August 2012 rating decision. As such, the Board’s decision will include these periods. (a.) Discussion of the pending December 2004, August 2012, and March 2015 rating decisions and whether an earlier effective date is warranted pursuant to 38 C.F.R. § 3.156(b). The June 2020 JMR directed the Board to discuss the pending March 2015 Rating Decision and whether an earlier effective date is warranted pursuant to 38 C.F.R. § 3.156(b) based on the evidence of record. As noted above, the Board finds this discussion also includes December 2004 and August 2012 rating decision periods. If a Regional Office (RO) renders a decision, but receives new and material evidence within the time the claimant has to appeal, the RO decision does not become final until the RO acts on the evidence. Lang v. Wilkie, 971 F.3d 1348, 1350 (Fed. Cir. 2020). Evidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran's claim. Id. There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply. Id. When evidence is received during the appeal period, VA must provide a determination that is directly responsive to the new submission and determine whether it constitutes new and material evidence; until it does so, the issue remains open. Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). 38 C.F.R. § 3.400(o)(2) states “[w]hen medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment.” First, the Board finds the claims filed by the Veteran in August 2004 and March 2011 were not final because, after the December 2004 and August 2012 rating decisions denied a rating in excess of 50 percent for PTSD, additional relevant VA treatment records were subsequently generated within the one-year appeal period of each decision and VA did not provide a determination that was directly responsive to the new submissions regarding whether these VA-generated records constituted new and material evidence. As such, the issue remains open since August 2003, which is one year prior to the date of the August 2004 claim. Furthermore, the claim filed in September 2014 was not final because, after the March 2015 rating decision denied his claim for increase, he underwent a July 2015 VA PTSD examination where the VA examiner noted suicidal ideation, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, and difficulty in adapting to stressful circumstances, including work or a work like setting. See Beraud, 766 F.3d at 1407. Next, the Board must determine whether the evidence of record between August 2003 (one year prior to the August 11, 2004 date of claim) and the March 2015 rating decision more nearly approximate an increased level of disability that warrants a higher rating than 50 percent for PTSD. There are three possible effective dates for an increased rating depending on the facts of the case. If an increase in disability occurred after the claim was filed, the effective date will be the date that the increase is shown to have occurred (date entitlement arose). If an increase in disability preceded the claim by a year or less, the effective date will be the date that the increase is shown to have occurred (factually ascertainable). If an increase in disability preceded the claim by more than a year, the effective date will be the date that the claim is received (date of claim). In all cases, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Briefly, in determinations of claims seeking a higher disability evaluation, the rating schedule is primarily a guide in that evaluation. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In this matter, the rating schedule for numerous mental disorders is found under the General Rating Formula, to which the individual diagnostic codes defer. 38 C.F.R. § 4.130. The Veteran’s PTSD is rated under Diagnostic Code 9411. It provides a 50 percent disability rating 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; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating 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 circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability rating will be assigned for 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; memory loss for names of close relatives, own occupation, or own name. Id. The Board should not confine its analysis only to identifying the presence of certain symptoms to determine the appropriate rating under the General Rating Formula, but also must draw fact-based conclusions as to whether those symptoms have caused the level of occupational and social impairment associated with a particular disability rating. Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA treatment records generated within one year of the December 2004 rating decision include mental health treatment since February 2005, which continued show the Veteran remained chronically depressed, but exhibited good to fair impulse control and judgment. These assessments were negative for any auditory or visual hallucinations, thought disorder, paranoid ideations, as well as homicidal and suicidal ideation. Additional VA treatment records and VA examinations since the December 2004 rating decision until June 2012 did not show any significant changes in the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected psychiatric disability that more nearly approximate the level of occupational and social impairment to warrant a rating above 50 percent. In June 2012, VA mental health treatment records noted the Veteran was still “reportedly doing fairly well,” however, he did endorse occasional thoughts of suicide, but said he would not act on them because of his children. He did not have any current suicidal or homicidal ideation or plans, hallucinations, or delusions. Overall, the treating VA psychiatrist found the Veteran had a low risk for suicidal behavior. In April 2013, the Veteran was still “reportedly doing fairly well,” and did endorse some memory impairment, like forgetting names of friends, but did not endorse any present suicidal or homicidal ideation. He exhibited good impulse control and judgment. Subsequent VA treatment records from October 2013 reflect the Veteran’s endorsement of poor impulse control, as well as auditory and visual hallucinations, but he denied any suicidal or homicidal ideation, plan, or intent at the time. An April 2014 VA treatment record noted “lot[s] of paranoid ideations.” During the March 2015 VA PTSD examination, the Veteran denied the presence of suicidal thoughts, but reported a few instances of passive suicidal ideation, with no attempt or intent, since the last VA examination. Indeed, the Board acknowledges that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, at 20. Nonetheless, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead, at 22. Since June 2012, the Veteran expressed such symptoms as suicidal ideation, which is similar to persistent danger of self-harm and is contemplated by the 100 percent criteria. Bankhead, at 19. However, the severity, frequency, and duration of the Veteran’s symptoms during this period, such as suicidal and paranoid ideation, did not rise to the level contemplated by the 70 percent or 100 percent disability rating criteria. Notably, the March 2015 VA examiner did not indicate the Veteran had active symptoms of suicidal ideation that applied to his current diagnoses. However, the VA examiner did find the Veteran had active signs and symptoms, such as depressed mood, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, and psychomotor retardation. The March 2015 VA examiner also quantified the Veteran’s active signs and symptoms as occupational and social impairment with reduced reliability and productivity, which more nearly approximates the 50 percent rating criteria. Based on the foregoing, the Board concludes that the Veteran’s psychiatric symptoms did not cause the level of occupational and social impairment required for a disability rating of 70 percent or higher for the period within one year of the September 2014 date of claim. The severity, frequency, and duration of the signs and symptoms of the Veteran’s psychiatric disability more closely approximated the symptoms that were either contemplated by or were more consistent with a 50 percent rating, and also resulted in a level of impairment that more closely approximated the level of impairment associated with a 50 percent rating. While the Veteran did experience symptoms contemplated by a 70 percent rating—suicidal ideation—the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. (b.) Whether an earlier effective date is warranted up to one year before the Veteran’s April 2015 supplemental claim was received by VA. The June 2020 JMR ordered the Board to discuss whether an earlier effective date is warranted up to one year before the Veteran’s April 2015 supplemental claim was received by VA. Specifically, the JMR found the Board failed to consider a potentially earlier effective date based on the following: an April 2014 VA treatment record that noted “lot[s] of paranoid ideations”; a March 2015 VA examination where the Veteran reported passive suicidal ideation a few times since the last VA examination; a May 2015 VA treatment record that noted the Veteran reports of helplessness and difficulties at home and work; a July 2015 VA examination for PTSD where the Veteran endorsed occasional thoughts of suicide and difficulty in adapting to stressful circumstances; a September 2016 psychiatric assessment that noted suicidal ideation “about a year ago,” i.e., September 2015. Looking to the period of approximately within one year prior to the April 2015 supplemental claim, the record includes an April 2014 VA treatment record that noted “lot[s] of paranoid ideations” and a March 2015 VA examination where the Veteran reported passive suicidal ideation a few times since the last VA examination. The Board previously addressed these records above and concluded that the severity, frequency, and duration of the Veteran’s suicidal and paranoid ideation during this period did not rise to the level contemplated by the 70 percent or 100 percent disability rating criteria. During May 2015 VA treatment, the Veteran reported his memory was significantly affecting him, specifically, he forgets things around the house, as well as feeling overwhelmed, stressed and perceiving everything to be coming at him at once. The Veteran reported nightmares, flashbacks and vivid dreams. He described being irritated easily, helplessness, and difficulties at home and work, but denied any perpetual disturbances and did not present a danger to himself or others. Another May 2015 VA treatment note containing a suicide risk screening shows the Veteran responded in the negative to questions of feelings of hopelessness, thoughts of taking his life and suicide attempts in the past and was judged to be at minimal risk of suicide. Mental status examination results made no finding for suicidal ideations. A July 2015 VA examination for PTSD showed that while the Veteran denied a history of attempted suicide, he admitted to occasional thoughts of suicide; however, he also denied seriously considering self-injury or suicide and he cited his faith and love for his children as protective factors against suicide. The July 2015 VA examiner made no finding of suicidal ideation as a current symptom, but did note the Veteran’s difficulty in adapting to stressful circumstances. On mental status examination, the Veteran again denied a history of suicide attempts and denied current suicidal ideation. September 2015 and March 2016 VA treatment notes show mental status examination results include no finding of suicidal ideations. The March and April 2016 suicide risk screenings show the Veteran responded negatively to all questions and again was judged a minimal risk. An April 2016 VA telephone encounter note states the Veteran did not express suicidal/homicidal ideations and added that he is doing well at present. Another April 2016 VA mental health treatment plan interdisciplinary note reported depressive symptoms (psychosocial domain). These depressive symptoms included poor sleep, poor appetite, weight loss, inadequate hygiene, withdrawn/isolative, suicidal ideation, depressed mood, and psychotic features (paranoia, delusional ideation). Although PTSD symptoms were also set forth, they did not include suicidal ideation. Other May 2016 private treatment notes, although noting complaints of anxiety and depression, also noted the Veteran denied thoughts of suicide. July and August 2016 VA primary care physician notes show negative responses on suicide risk screenings. The Board also points out that excerpts from a September 2016 private medical record from Dr. H.J. do not reflect actual symptoms detected on that day’s examination, but are simply the Veteran’s account of how he felt at some time in the past. In an Initial Psychiatric Assessment, Dr. H.J. stated in the history section, based on the Veteran’s reports, “[h]e reported that the last time he thought of suicide [was]about a year ago when he felt depre[]ssed.” The Board notes that Dr. H.J.’s medical history notes show the Veteran also reported “suicidal thought following his return from the war zone” and “[t]he patient did relate that he has had suicidal thoughts in the past but reported that he would take no action on those thoughts.” The Board further notes that on the mental status examination administered by Dr. H.J., the Veteran “denied any suicidal or homicidal thought or any self-injurious behavior.” The October 2016 VA examination for PTSD stated a diagnosis of chronic PTSD. The Veteran reported anger problems at home, not close to people, no hobbies, self-isolated, no contact with public at work, sleeping at work, work affected by memory and concentration problems, and recently quit his job with no further employment. The October 2016 VA examiner found symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; 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 worklike setting; and suicidal ideation. Behavioral observations included the following: Veteran was well groomed. He presented with appropriate eye contact, he was alert, and oriented X3 [oriented to person, place and time]. Veteran’s speech was normal, and he was cooperative during the exam. No psychomotor agitation present. Veteran denied any delusional thinking. He denied auditory or visual hallucinations. Veteran denied any current suicidal or homicidal ideation. His thought process was logical. His mood was depressed, tearful, with a flat affect. He presented with no apparent attention or memory difficulties. Veteran presented with adequate insight and judgment. The October 2016 VA examiner assessed the functional impact of the Veteran’s impairments on occupational activities as follows: Veteran is likely to have difficulties functioning in an occupational setting due to the symptoms of PTSD. Veteran’s sleep problems interfere with his day-to-day functioning, may make him drowsy throughout the day, and impede his cognitive functioning. Veteran’s irritability associated with PTSD likely to interfere with work relationships. His performance at work may be affected by his symptoms, such as hypervigilance/hyperarousal, making it difficult for him to concentrate on tasks. Although, from the above findings, the October 2016 VA examiner found only occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent evaluation under the General Rating Formula, the October 2016 rating decision which soon followed, after setting forth the October 2016 VA examiner’s findings of relevant symptoms, to include suicidal ideation, increased the evaluation to 70 percent disabling, stating, “[t]he overall evidentiary record shows that the severity of [the Veteran’s] disability most closely approximates the criteria for a 70 percent disability evaluation,” further observing that symptoms indicating any higher evaluation were not in evidence. The rating decision assigned an effective date of July 25, 2016, based on the date that the increased severity of the Veteran’s psychiatric symptoms was shown to have occurred. The foregoing summary indicates that the April 2016 depressive symptom of suicidal ideation in fact receives some further elaboration in Dr. H.J.’s September 2016 assessment, in which the Veteran quite specifically stated he “has had suicidal thoughts in the past,” presumably since he had returned from overseas deployment. The Veteran was speaking of these thoughts in the past, indicating that they were not current and they had not been continuous. Moreover, given consistent negative responses in numerous suicide risk screenings in this period, as well as no findings whatsoever for suicidal ideations in mental status examinations and during behavioral observations, the Veteran’s factual references to “suicidal thoughts,” rather than current, are in the nature of something singular, historical and detached from any pattern. Based on these fact-based considerations, the Board has engaged in a holistic analysis in which it assessed the severity, frequency, and duration of the signs and symptoms of the Veteran’s PTSD and does not conclude that these statements were frequent or of any duration beyond the length of an isolated episode. Moreover, the Veteran did not expand on the nature of their severity, but did hold fast to his statements, consistent in the period of within one year prior to July 25, 2016, that he had never attempted suicide and denied any current suicidal ideation. In choosing July 25, 2016 as the effective date, the RO assigned a date more favorable to the Veteran than the Board’s understanding of the evidence of record would have prompted it to choose. Entitlement to the higher rating was first shown as of the October 2016 examination. Based on the foregoing, the Board concludes that the preponderance of the evidence for the period up to one year before the April 2015 supplemental claim also does not support an earlier effective date than July 25, 2016. The criteria for a higher rating was first shown in the October 2016 VA examination, and not before. During this period, the Veteran’s symptoms did not rise to the level of impairment required for a disability rating of 70 percent or higher up to within one year of the April 2015 supplemental claim. The severity, frequency, and duration of the signs and symptoms of the Veteran’s psychiatric symptoms more closely approximated the symptoms either contemplated by or more consistent with a 50 percent rating, and also resulted in a level of occupational and social impairment that more closely approximated the level of impairment associated with a 50 percent rating. While the Veteran did experience symptoms contemplated by a 70 percent rating—suicidal ideation—the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. All evidence has been considered (Continued on the next page)   and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. J.B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Connally, 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.