Citation Nr: 21002690 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-11 282A DATE: January 14, 2021 ORDER Entitlement to an effective date earlier than July 24, 2007, for the grant of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) effective from May 25, 2010, to March 6, 2013, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to initial increased ratings for PTSD with major depressive disorder, currently rated as 30 percent disabling prior to June 9, 2015, and 50 percent disabling since June 9, 2015, is remanded. FINDINGS OF FACT 1. On July 24, 2007, a Department of Veterans Affairs (VA) regional office (RO) received the Veteran’s claim for service connection for PTSD. 2. A RO granted service connection for PTSD effective July 24, 2007, in an October 2014 rating decision. 3. There was no formal claim, informal claim, or written intent to file a claim to entitlement to service connection for PTSD or another psychiatric disorder prior to July 24, 2007. 4. The weight of evidence shows that the Veteran stopped working full time on May 24, 2010. 5. From May 25, 2010, to March 6, 2013, the Veteran was service-connected for obstructive sleep apnea with hypersomnia, PTSD with major depressive disorder, temporomandibular joint syndrome, hypertension, lumbar strain, bilateral shoulder disabilities, a left ankle disability, gastroesophageal reflux disease (GERD), a left knee disability, tinnitus, erectile dysfunction, bilateral tinea pedis, and bilateral hearing loss. 6. From May 25, 2010, to March 6, 2013, the Veteran’s service-connected disabilities were rated 90 percent disabling with the sleep apnea being rated 50 percent disabling. 7. The weight of evidence shows that Veteran’s service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from May 25, 2010, to March 6, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than July 24, 2007, for the grant of service connection for PTSD with major depressive disorder have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. § 3.400 (2020). 2. The criteria for TDIU from May 25, 2010, to March 6, 2013, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19, 4.25, 4.26 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1982 to November 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) regional office (RO) in which a RO granted service connection for PTSD effective July 24, 2007, and assigned a 30 percent rating effective that same date. In a March 2016 rating decision, a RO assigned a 50 percent disability rating for the psychiatric disorder and recharacterized the disability as PTSD with major depressive disorder. As the 50 percent disability rating is not the maximum rating available for the psychiatric disorder, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In March 2019, the Veteran testified at a Travel Board hearing held at a RO before a Veterans Law Judge but the transcript of that hearing is unavailable due to technical difficulties. In July 2019, the Board informed the Veteran of the unavailability of the transcript and afforded him another opportunity for a hearing. Later in July 2019, the Veteran chose to have another Travel Board hearing. In February 2020, the Veteran testified at a Travel Board hearing held at a RO before the undersigned Veterans Law Judge and a transcript of the hearing has been associated with the electronic claims file. At the February 2020 hearing, the Veteran requested a 60-day extension to submit additional evidence, which the undersigned Veterans Law Judge granted. Hearing transcript, page 2. The Veteran submitted additional evidence, and that 60-day period has expired. 38 C.F.R. § 20.605 (2020). In February 2014, the Veteran testified at a Travel Board hearing held at a RO before a Veterans Law Judge who has retired on the issue of an increased rating for a left knee disability. In December 2014, the Board took jurisdiction of the issue of entitlement to TDIU as part and parcel of the issue of an increased rating for the left knee disability pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). In a September 2015 rating decision, a RO granted TDIU effective March 7, 2013. At the February 2020 hearing, the Veteran raised the issue of entitlement to TDIU prior to March 7, 2013, on the basis of the claim of an increased rating for PTSD pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Hearing transcript, pages 5-8. As such, the Board will take jurisdiction of that issue. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist except for the Veteran’s contention that the RO should have inferred a claim for service connection for a psychiatric disorder in 2005 when he filed his initial claim for service connection. Scott v. McDonald, 789 F.3d 1375 (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 duty to assist argument). The Veteran’s argument will be addressed in the analysis. Earlier Effective Date 1. Entitlement to an effective date earlier than July 24, 2007, for the grant of service connection for PTSD with major depressive disorder Governing law and regulations The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award of compensation based on an original claim shall be fixed in accordance with facts found but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C. § 5110(a). The implementing VA regulation provides that the effective date of an award of compensation based on an original claim filed over a year after active service will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(a). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran that may be interpreted as applications or claims – formal and informal – for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The Board notes that on March 24, 2015, VA amended its adjudication regulations 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. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case and appeal were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. 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). The term “claim” or “application” means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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 one year from the date it was sent to a veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed that meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Analysis On July 24, 2007, a VA RO received the Veteran’s claim for service connection for PTSD. A RO granted service connection for PTSD effective July 24, 2007, in the October 2014 rating decision. There was no formal claim, informal claim, or written intent to file a claim to entitlement to service connection for PTSD or another psychiatric disorder prior to July 24, 2007. Neither the Veteran nor his representative has identified any document dated or received prior to July 24, 2007, indicating a specific intent to claim service connection for PTSD or another psychiatric disorder. The Veteran, instead, argues that the effective date should be December 1, 2005, because his separation examination report showed a diagnosis of depression and because he was given a physical profile of “2” for psychiatric impairment in service. The Veteran essentially argues that the RO should have inferred a claim for service connection for a psychiatric disorder based on those service treatment records when he filed his initial claim in December 2005 following separation in November 2005. The Board notes that the service treatment records showing a diagnosis of depression and a physical profile for psychiatric impairment were of record in December 2005 when the Veteran filed his initial claim that month. In his VA Form 21-526 (veteran’s application for compensation and/or pension), he listed 17 disabilities for which he was seeking service connection, but none of them were a psychiatric disability. Therefore, the Veteran did not express an intent to claim service connection for a psychiatric disorder when he filed his initial claim in December 2005. In the absence of an intent expressed by the Veteran, there was no obligation for the RO to adjudicate a claim for service connection for a psychiatric disability even though there was evidence of a psychiatric disability in service. In short, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against a finding that an effective date earlier than July 24, 2007, for the grant of service connection for PTSD with major depressive disorder is warranted. Therefore, the preponderance of the evidence is against the claim, and it is denied. Increased Rating 2. Entitlement to TDIU Governing law and regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined 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 this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Analysis A July 2015 statement from the Veteran’s former employer reflects that he worked full time as a teacher from August 2007 to May 24, 2010. The Veteran has not had any employment since May 25, 2010. In the September 2015 rating decision, a RO granted TDIU effective March 7, 2013. The weight of evidence shows that the Veteran stopped working full time on May 24, 2010. Thus, the Board will consider whether TDIU is warranted from May 25, 2010, to March 6, 2013. From May 25, 2010, to March 6, 2013, the Veteran was service-connected for obstructive sleep apnea with hypersomnia, PTSD with major depressive disorder, temporomandibular joint syndrome, hypertension, lumbar strain, bilateral shoulder disabilities, a left ankle disability, GERD, a left knee disability, tinnitus, erectile dysfunction, bilateral tinea pedis, and bilateral hearing loss. From May 25, 2010, to March 6, 2013, the Veteran’s service-connected disabilities were rated 90 percent disabling with the sleep apnea being rated 50 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) from May 25, 2010, to March 6, 2013. In his April 2013 formal TDIU claim, the Veteran noted that his service-connected disabilities affected his ability to work full time in May 2010, that he last worked full time in May 2010, and that he became too disabled to work in May 2010. The Veteran worked as a teacher. He noted that she had four years of college and two years of additional education and that he had no other education or training before or after he became too disabled to work. An October 2010 VA examination report reflects that the left knee disability caused no functional limitations on standing and walking. As for sleep apnea impacting his job, the examiner noted that the Veteran felt tired during the day. A November 2010 VA continuous positive airway pressure (CPAP) titration study report reveals an impression of excessive daytime sleepiness. A February 2013 private treatment record shows that the Veteran was using a CPAP machine. In September 2013, a private doctor stated that the Veteran’s quality of life is restricted due to osteoarthritis and that he is unable to climb stairs, lift, stand, or bend without assistance. A June 2014 VA psychiatric examination report reflects that the examiner determined that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functionally satisfactorily with normal routine behavior, self-care, and conversation. The examiner, however, also noted that the Veteran had difficulty in establishing and maintaining effective work and social relationships. A June 2014 VA knee examination report reveals that the Veteran had not been working for four years. The examiner noted that the Veteran had many joint complaints and that these complaints have prevented him from teaching school. The examiner noted that the Veteran was unable to stand for long periods of time. The examiner added that activities of daily living were “OK.” The examiner indicated that the Veteran can dress and undress and that he can handle his food and using the toilet. The examiner noted that the Veteran needed help tying his shoelaces and needed support sitting and getting off the toilet. In June 2015, VA Vocational Rehabilitation and Employment determined that the Veteran’s depression, PTSD, other medical issues, and inability to maintain a job make it unreasonable to expect that he could use the vocational rehabilitation program to get and keep competitive employment. The Board places great weight on the findings that the Veteran was using a CPAP machine for his sleep apnea, the findings in June 2014 VA knee examination report regarding the inability to stand and needing assistance using the toilet, and the finding in the June 2014 VA psychiatric examination report regarding a difficulty in establishing and maintaining effective work and social relationships. Based on these findings, the weight of evidence shows that Veteran’s service-connected disabilities have rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience from May 25, 2010, to March 6, 2013. Accordingly, entitlement to TDIU from May 25, 2010, to March 6, 2013, is in order. REASONS FOR REMAND At the February 2020 hearing, the Veteran essentially testified that he had various symptoms representative of a rating in excess of 50 percent. Hearing transcript, pages 9-10. The Veteran has essentially alleged a worsening of his psychiatric disorder. In addition, the last VA examination report was in June 2015. Therefore, another VA examination report is warranted. The RO should obtain any additional records from the Atlanta VA Health Care System since October 2020. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from the Atlanta VA Health Care System for the period from October 2020 to the present. 2. After the development in 1 is completed, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD with major depressive disorder. 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. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD with major depressive disorder alone. 3. After development above has been completed, the RO should readjudicate the Veteran’s claim. If any claim remains denied, the Veteran should be issued a supplemental statement of the case, with a copy to his representative, and afforded an opportunity to respond. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.