Citation Nr: 21002688 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 17-35 445 DATE: January 14, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) is granted. Entitlement to an effective date earlier than November 17, 2014 for the grant of service connection for PTSD is denied. REMAND Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is characterized by occupational and social impairment, with deficiencies in most areas; however, it is not characterized by symptoms resulting in total social and occupational impairment. 2. The Veteran’s claim of entitlement to service connection for PTSD was received by VA on November 17, 2014. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9411. 2. The criteria for an effective date earlier than November 17, 2014, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to December 1969. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Offices (RO). In December 2020, the Veteran testified at a Virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Based upon the record and the Veteran’s November 2015 application, the Board finds that a TDIU claim has been raised in this appeal, and has accordingly added this issue to the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran is currently rated at 50 percent for his PTSD. However, he believes he is entitled to a higher 70 or 100 percent rating for the entire appeals period. The Veteran’s PTSD is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. When rating psychiatric disorders, the use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Under the General Rating Formula, a 50 percent rating is assigned when the evidence shows 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The criteria for a 70 percent rating are: 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. Id. The criteria for a 100 percent rating are: 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. VA implemented the Diagnostic and Statistical Manual Of Mental Disorders, Fifth Edition (DSM-5), effective August 4, 2014, and determined that the DSM-5 applies to claims certified to the Board on and after August 4, 2014. See Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093-94 (Aug. 4, 2014). As the Veteran’s increased rating claim was originally certified to the Board in August 2017, the earlier DSM-IV edition is not for application in this case. As relevant to this case, in Golden v. Shulkin, 29 Vet. App. 221, 226 (2018), the United States Court of Appeals for Veterans Claims (Court) noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with mental disorders, the DSM-5 eliminated Global Assessment of Functioning (GAF) scores, which the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness, because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” Id. Given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Court held that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. Id. Thus, the Board will afford no probative value to the GAF scores mentioned in the record, and does not consider them for purposes of assigning a psychiatric rating in this appeal. In relevant part, the February 2015 VA examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The VA examiner indicated that the Veteran was alert, oriented, and cooperative. His mood is anxious, and his affect blunted. However, there was no evidence of suicidal thoughts at the time of the examination, or evidence of psychosis. See February 2015 VA PTSD Disability Benefits Questionnaire (DBQ). The Veteran was next examined by VA in May 2016. At that time, the examiner noted the same symptoms as enumerated in the February 2015 VA PTSD DBQ. The Veteran reported experiencing feeling distant or cut off from others, difficulty experiencing positive feelings, hypervigilance, anger outbursts, and problems with concentration or memory. The Veteran denied suicidal and/or homicidal ideation at the time of the examination. Upon mental status examination, the examiner noted the Veteran’s grooming and hygiene were good. He was cooperative with the interview, but his mood was described as, "irritable." The Veteran’s affect was broad and congruent to speech content. The Veteran exhibited linear and logical thought processes. There was no indication of thought disorder, delusions, or hallucinations. See May 2016 PTSD DBQ. The Veteran was most recently examined by VA in May 2017. At that time, in addition to the above noted symptoms, the examiner indicated the presence of suspiciousness; circumstantial, circumlocutory or stereotyped speech; and, impaired impulse control, such as unprovoked irritability with periods of violence. The examiner also noted intrusion symptoms, avoidance practices, persistent negative emotional state, markedly diminished interest or participation in significant activities, feelings of detachment or estrangement from others, hypervigilance, exaggerated startle response, problems with concentration, and sleep disturbances. The examiner determined that, based upon the examination, the Veteran needs to seek follow up treatment for his PTSD. VA treatment records also show intermittent treatment for the Veteran’s PTSD. In relevant part, an October 2014 VA treatment record shows the Veteran’s report of suicidal thoughts. See October 2014 VA Treatment Record. The Board also acknowledges the Veteran’s reported symptomatology during his December 2020 Board hearing. At that time, the Veteran reported suicidal thoughts, inability to practice good hygiene, hallucinations about being back in Vietnam, and violence toward his prior wives. Following a review of the lay and medical evidence, the Board concludes that the preponderance of the evidence supports a finding that the Veteran’s PTSD is productive of the higher 70 percent rating. In addressing 38 C.F.R. § 4.130, the United States Court of Appeals for Veteran’s Claims held in Bankhead that “... the language of the regulation indicates that the presence of suicidal ideation alone, that is, a [V]eteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). In light of the holding in Bankhead, the Board finds that the Veteran’s reports of suicidal thoughts on several occasions both prior to and during the appeal period is controlling probative evidence in determining that his psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas. Furthermore, the evidence shows the Veteran’s PTSD has been manifested by depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; suspiciousness; circumstantial, circumlocutory or stereotyped speech; impaired impulse control, such as unprovoked irritability with periods of violence; intrusion symptoms; avoidance practices; persistent negative emotional state; markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; hypervigilance; exaggerated startle response. See February 2015, May 2016, and May 2017 VA PTSD DBQs. The Board also notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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 rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The Board further finds that the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record during the appeal period. The evidence does not show that the Veteran has total occupational and social impairment. The Veteran has never attested to suffering from delusions, gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, or suffering from more than mild memory loss. In fact, to the contrary, he has repeatedly denied the majority of the symptoms above required for the higher 100 percent rating. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements found in the record. In this regard, the Veteran is certainly competent to report how he believes his PTSD has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions provided by the VA examiners, as discussed above, in rendering a decision as to the severity of the Veteran’s PTSD based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeal period. Therefore, resolving all reasonable doubt in the Veteran’s favor, an initial rating of 70 percent, but no higher, is warranted for the entire period on appeal. In reaching this determination, the Board notes that this appeal raises no additional rating issues, other than the TDIU claim addressed below. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). Earlier Effective Date The Veteran is seeking entitlement to an effective date earlier than November 17, 2014 for the grant of service connection for PTSD. Specifically, he contends that his effective date should be from 1969, when he separated from the military, due to the fact that he has had problems since Vietnam. See March 2016 Notice of Disagreement. The provisions governing the assignment of the effective date of a claim for compensation or an increased rating are set forth in 38 U.S.C. §§ 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later. 38 C.F.R. § 3.400 (2020). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. The provisions of 38 C.F.R. § 3.157 (which, as of September 25, 2014, have been removed) commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. § 3.1(p), 3.151, 3.155). The Board notes that effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. § 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Here, Veteran’s claim was received by VA prior to that date, and, as such, the former regulations apply. “Application” is not defined in the statute. However, in the regulations, “claim” and “application” are considered equivalent and are defined broadly to include “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); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans’ benefits, a claim, whether “formal” or “informal” must be “in writing” in order to be considered a “claim” or “application” for benefits, and that the provisions of 38 C.F.R. § 3.1(p) defines “claim,” informal as well as formal, as a “communication in writing.” Further, the Federal Circuit stated that when 38 C.F.R. § 3.155(a) refers to “an informal claim,” it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1(p) as a “communication in writing.” The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155(a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication “indicat[e] an intent to apply for one or more benefits under the laws administered by the Department,” and “identify the benefits sought.” Here, the Veteran filed a claim of entitlement to service connection for his PTSD on November 17, 2014. This claim was granted in the March 2015 rating decision presently on appeal, that assigned an initial rating of 50 percent, effective from November 27, 2014. The Veteran has not asserted, nor does the record otherwise reflect, that he filed a claim of entitlement to service connection for this disorder earlier than November 17, 2014. The Board is aware that Veteran’s argument is that he is entitled to an effective date from December 13, 1969, the day after his separation from service, since his PTSD is the result of his service in Vietnam. However, having a disability is not equivalent to actually filing a claim for that disability, although, in this instance, his PTSD was undoubtedly present prior to the date of his claim and would be the date his entitlement arose. The provisions of 38 U.S.C. § 5110 refer to the date an “application” is received, and “date of receipt” means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). Here, the effective date for this associated disability can be no earlier than the date of receipt of the claim, which was November 17, 2014. This date is the later of the date entitlement arose and date of the claim. Consequently, the Board finds that entitlement to an effective date earlier than November 17, 2014, pursuant to 38 C.F.R. § 3.400(o)(1) is not warranted. As the preponderance of the evidence is against the claim, there is no doubt to resolve. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The claim is denied. REMAND As noted, a TDIU claim has been added to the appeal per Rice. The Board finds that additional notification and development is needed before a final Board adjudication is made on this claim. The most recent TDIU application (VA Form 21-8940) dates from November 2015, more than five years ago, and the Veteran’s occupational situation may have changed since then. Moreover, the TDIU claim was not adjudicated in the June 2017 Statement of the Case. As such, this case is REMANDED for corrective action: 1. Furnish the Veteran a new VA notice letter and VA Form 21-8940. Give him a reasonable period of time in which to fill out and return the VA Form 21-8940. 2. Then, readjudicate the claim. If the determination is not fully favorable, furnish the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable period of time before returning this case to the Board. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.