Citation Nr: 21001910 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-04 831 DATE: January 12, 2021 ORDER Entitlement to an effective date prior to April 26, 2016 for the award of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) is granted. REMANDED Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. FINDINGS OF FACT 1. VA received an intent to file a claim on April 24, 2015, but a completed application form was not received by VA within one year of receipt of the intent to file. 2. The Veteran filed a subsequent intent to file a claim, which was received by VA on April 26, 2016. Within one year, the Veteran completed and submitted an application form requesting service-connection for PTSD. 3. The Veteran’s service-connected PTSD precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for the assignment for an effective date prior to April 26, 2016, for establishing service connection for PTSD, have not been met. 38 U.S.C. §§ 5110, 5103A; 38 C.F.R. §§ 3.155, 3.159, 3.400. 2. The criteria for establishing entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1968 to December 1971. 1. Entitlement to an effective date for the grant of service connection prior to April 26, 2016 for PTSD is denied. The Veteran has asserted that he is entitled to an earlier effective date for his grant of service connection for PTSD. The Veteran filed an intent to file (VA Form 21-0966) on April 24, 2015 and April 26, 2016. The Veteran filed a completed application for disability compensation (VA Form 21-526EZ) for PTSD on September 20, 2016. In general, the effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service, or a claim reopened after final disallowance. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed after that date, the new amendments are applicable and will be applied. As per the revised regulations, a claimant may indicate his or her desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). The Board finds that an earlier effective date is not warranted for the award of service connection for the Veteran’s PTSD. The Veteran’s complete claim was filed September 30, 2016, within one year of the April 26, 2016 intent to file, but over one year after the April 24, 2015 intent to file form was received. The Board observes that when the Veteran submitted his April 24, 2015 intent to file form, his representative specifically indicated on a cover letter that the Veteran was aware of the requirement to fill out an application for compensation within one year to preserve the earliest effective date. Moreover, in a May 8, 2015 letter, the VA acknowledged receipt of the Veteran’s intent to file form, and advised him of the same, providing specific instructions on how to access the formal application. Still, the Veteran did not submit the claims form within one year of the April 2015 intent to file form. Rather, the Veteran filed a second intent to file form on April 26, 2016, followed by a September 2016 service-connection claim for PTSD. Upon awarding service connection, the AOJ properly awarded the benefit effective the date VA received his April 26 2016 intent to file form, but no earlier. The Board acknowledges that the Veteran experienced symptoms of PTSD prior to April 2016. However, the “mere presence” of a diagnosis of a specific disorder in a VA medical record “does not establish an intent on the part of the veteran “to seek service connection for that disorder.” Brannon v. West, 12 Vet. App. 32, 35 (1998); see also MacPhee v. Nicholson, 459 F. 3d 1323; 38 C.F.R. § 3.155. There is no correspondence pre-dating the regulation changes in March 2015 that can otherwise be construed as an informal service-connection claim for benefits, as was previously available under former 38 C.F.R. § 3.155. In sum, for the reasons discussed above, the Veteran’s appeal for the assignment of an effective date prior to April 26, 2016 for the award of service connection for PTSD must be denied. 2. Entitlement to a TDIU is granted. TDIU may be assigned when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that: if the veteran has only one such disability, the disability must be rated at 60 percent or more, or, if the veteran has two or more disabilities, at least one disability is rated at 40 percent or more and additional disabilities bring the veteran’s combined disability rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his or her case outside of the norm. The sole fact that he or she is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran is service connected for PTSD, rated as 70 percent disabling. Therefore, the Veteran does meet the schedular requirements for TDIU. Thus, the only remaining question with regard to the Veteran’s claim for a TDIU is whether he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disability. On a June 2017 VA counseling record narrative report, the vocational rehabilitation counselor indicated that the Veteran lacks job seeking skills. The counselor explained that although the Veteran has an acceptable resume, the Veteran’s interviewing skills need improvement to effectively address the employer’s needs. In a March 2018 VA treatment record, the Veteran stated that he would like to find employment in cybersecurity, but he does not believe he can work in an office setting due to anxiety. In an October 2018 VA treatment letter, social worker J.A. stated that the Veteran’s PTSD has impacted the Veteran’s ability to consistently complete tasks. J.A. stated the Veteran has been attending individual therapy since 2017. J.A. stated that the Veteran’s experiences difficulty with expressing himself and his emotions; isolation; problems controlling his anger; suspiciousness and frustration; and anxiety and rage. In an October 2018 statement, the Veteran stated that he finished his university degrees in December 2016 and from August 2016 to March 2017 he searched for employment in cybersecurity. He stated he applied for over 500 positions and had numerous interviews. However, he was never called for a second interview or for the extension of a job offer. He stated that during the interviews he was questioned about “team building skills” and he was unable to answer. He stated he has not been employed since December 2011. In a May 2019 vocational assessment, received by VA in June 2019, Dr. J.S.C. opined that the Veteran’s PTSD symptoms are significantly severe to interfere with any level of substantial gainful competitive employment. The medical provider found the Veteran to experience difficulty being around others; trouble with controlling his emotions; difficulty in various social interactions and interacting appropriately in social or work like situation; difficulty in adapting to stressful circumstances; near continuous state of panic daily; and significant interruption in his ability to complete tasks, follow direction, or concentrate on a daily basis. The medical provider stated that these symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning and result in a total inability to maintain substantial gainful employment, even at the lowest level of work, to sedentary level. Dr. J.S.C. stated that gainful competitive sedentary work in the national economy requires the ability to sit for at least six hours and stand and/or walk for at least two hours in an eight hour workday, five days per week or the equivalent. Dr. J.S.C. stated that the worker must also be capable of maintaining a schedule and the expected pace and production required by the employer and do so with minimal absences or breaks from work. Further, Dr. J.S.C. stated that the worker must be able to complete tasks fully while maintaining appropriate relationships with co-workers, supervisors, and possibly customers depending on the occupation. Dr. J.S.C. stated that based on review of the records, the Veteran’s PTSD causes the Veteran’s to be unable to maintain substantially gainful employment on a regular and consistent basis, even at the unskilled sedentary level of work. Therefore, based on review of the claims file, VA examinations, private medical records, educational information, past relevant work information, and lay statements from the Veteran, Dr. J.S.C. concluded that, with a high degree of certainty, the Veteran has been unable to secure or follow a substantially gainful occupation as a result of his condition without regard to any other conditions, since at least April 2016. In a June 2019 statement from Dr. J.L., the medical provider stated that due to the Veteran’s PTSD, the Veteran has struggled to find adequate employment, despite multiple efforts. Dr. J.L. stated that the Veteran’s PTSD symptoms will continue to be a major barrier to employment for the foreseeable future. In a May 2019 private medical opinion, received by VA in June 2019, Dr. J.M opined that it is likely as not that the Veteran’s very severe limitations of the Veteran’s PTSD and major depressive disorder have rendered the Veteran unemployable since 2013. Dr. J.M. reasoned that after review of the claims file and an interview with the Veteran, the Veteran has deficiencies in most areas, including work, school, family and social relations. Dr. J.M. observed the Veteran to have a tendency to isolate; problems controlling his anger; suspicious and frustrated at times; triggered to the extent of becoming full of anxiety and rage; difficulties in concentrating and ability to focus; problems with memory, both short and long term; and poor judgment in social situations. Dr. J.M. stated that these symptoms make functioning independently, appropriately, and effectively nearly impossible, and because of these symptoms, the Veteran cannot adapt to stressful circumstances and has been unable to do so since at least October 2013. In a July 2019 statement, the Veteran’s wife stated that she is a certified nurse midwife with a master’s degree in human behavior. She stated that the Veteran was terminated from two jobs and he resigned from the third job because his depression effected is job performance. She stated the Veteran enrolled at a university in 2012 to obtain a bachelor’s and master’s degrees. She stated that the Veteran arranged his schedule to avoid busy campus hours and to work with others over the Internet to avoid interacting with others. She stated that after graduation, the Veteran applied for more than 500 jobs and did not receive any job offers. She stated that when he was provided an interview, to include second interviews, he was not offered the positions. She stated that he faltered when he described the employers asking about group settings or teamwork. She stated that the Veteran worried about telling the employers about his mental health disorder or misrepresenting is ability to interact with others. The Veteran’s wife stated that she does not believe her husband can maintain any type of employment that would require him to interact with others or keep regular hours. She stated that the Veteran is a bright man, but he has days when he is mentally exhausted and is unable to focus or comprehend tasks and solve problems. Upon review of the record, the Board finds that entitlement to a TDIU is warranted. The evidence of record, including the Veteran’s and his wife’s statements, VA vocational rehabilitation and education records, a May 2019 private medical opinion, and a May 2019 private vocational opinion, all reflect that the Veteran last engaged in substantially gainful employment in 2011 and the Veteran obtained a master’s degree from a university in 2014, but is unable to obtain and maintain substantially gainful employment due to the severity of his PTSD. The May 2019 private medical opinion and May 2019 vocational opinion show that the Veteran’s symptoms of PTSD interfere with the Veteran’s ability to concentrate on tasks, complete tasks, and work with others. These opinions strongly suggest that the Veteran’s PTSD precludes him from all forms of employment, including unskilled sedentary work. As a result, the Board finds that the totality of the evidence supports a finding that the Veteran’s service-connected disability renders him unable to obtain and maintain gainful employment. Accordingly, based on all of the above, the Board finds that entitlement to a TDIU is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an initial rating in excess of 70 percent for PTSD is remanded. A remand is required to obtain an updated VA examination. The Veteran last underwent a VA examination to assess the severity of his PTSD in February 2017. However, since that time the Veteran has asserted in the July 2019 attorney’s memorandum that his PTSD has worsened with increased inability to keep up with activities of daily living. As it has been over three years since the Veteran had been provided with a VA examination concerning his claim for increased rating and there is an assertion of worsening symptomatology, a remand is warranted to ensure that the record contains evidence of the current severity of the Veteran’s service-connection PTSD. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. (Continued on Next Page) 2. Then, readjudicate the issue on appeal. If the benefit sought remains denied, send the Veteran and his attorney a supplemental statement of the case. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.