Citation Nr: 21061704 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 18-48 298 DATE: October 5, 2021 ORDER For the entire initial rating period on appeal, from July 3, 2017, a higher initial disability rating of 100 percent for posttraumatic stress disorder (PTSD), the maximum schedular rating, is granted. An effective date prior to July 3, 2017, for the award of service connection for PTSD is denied. FINDINGS OF FACT 1. From July 3, 2017, the severity, frequency, and duration of the symptoms of the service connected PTSD more nearly approximated total occupational and social impairment. 2. An October 2013 RO rating decision denied service connection for an acquired psychiatric disorder. 3. A supplemental claim for service connection for an acquired psychiatric disorder was received by VA in November 2013, and service connection for an acquired psychiatric disorder was again denied in a March 2015 rating decision; the March 2015 rating decision subsequently became final. 4. An intent to file a claim to reopen service connection for the acquired psychiatric disorder of PTSD was received on July 3, 2017. 5. No claim, formal or informal, to reopen service connection for PTSD (or any other acquired psychiatric disorder) was received by VA during the period from March 2015 to July 3, 2017. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, from July 3, 2017, the criteria for an initial total disability rating of 100 percent, the maximum schedular rating, for the service connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. As a matter of law, the criteria for an effective date prior to July 3, 2017 for 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, who is the appellant, had active service from January 2010 to January 2013. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2017 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran testified at a September 2020 virtual Board hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. At the outset, the Board will address some procedural confusion in the record. The record reflects that a VA Form 21-0966, Intent to File, was received by VA on July 13, 2017. Nonetheless, a letter from VA dated July 3, 2017 indicates that an intent to file was received on July 3, 2017, and in the September 2017 RO rating decision granting service connection for PTSD and awarding an initial 50 percent disability rating, an effective date of July 3, 2017 was established. Upon the Veteran appealing the initial rating assigned, in a September 2018 rating decision the RO granted a higher initial disability rating of 70 percent, effective July 13, 2017. As the Veteran was originally assigned an effective date of July 3, 2017 for the grant of service connection for PTSD, and as there is some evidence of record to support that date (the July 3, 2017 VA letter), in the instant decision the Board finds the PTSD rating period on appeal to run from July 3, 2017. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). As the instant decisions grants a 100 percent total initial disability rating for the service connected PTSD, the maximum schedular rating, no further discussion of VA's duties to notify and assist is necessary as to that issue. As to the effective date issue, concerning the duty to notify, as the earlier effective date issue arises from the Veteran's disagreement with the effective date assigned following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3). Regarding the duty to assist, as will be explained below, the law, and not the facts, is dispositive of the effective date in this case; therefore, the duty to assist imposed by the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). 1. Higher Initial Disability Rating of 100 Percent for PTSD is Granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). The Veteran has appealed from the initial rating assigned for the service connected PTSD. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Under Diagnostic Code 9411, a 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent 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, own occupation, or own name. 38 C.F.R. § 4.130. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501 (2012); 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). Having reviewed the evidence of record, lay and medical, the Board finds that, for the entire initial rating period on appeal, from July 3, 2017, the severity, frequency, and duration of the symptoms of the service connected PTSD more nearly approximated total occupational and social impairment. Specifically, the symptoms warranting such a finding include an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, and persistent hallucinations. Concerning the symptoms warranting the grant of a 100 percent total disability rating, per the report from a November 2018 VA PTSD examination, the Veteran was diagnosed with two mental health disabilities, PTSD and bipolar disorder/schizophrenia. Further, per the examination report, the symptoms of the two disabilities could be differentiated, with both the hallucinations and the decline in hygiene attributed to the bipolar disorder; however, at the conclusion of the examination the VA examiner explicitly opined that the bipolar disorder was secondary to the service-connected PTSD. Specifically, the bipolar disorder was a progression of the depressive symptoms caused by the service-connected PTSD. As such, the Board finds the mental health symptoms of hallucinations and the decline in hygiene to be directly attributable to the service-connected PTSD. Per the Veteran's VA treatment records, in May 2017 the Veteran was admitted to a VA medical center by the police for mental health treatment. At that time, the Veteran conveyed having auditory and visual hallucinations, which included voices threatening to kill the Veteran, paranoid thoughts, and suicidal ideation with a history of attempt. Following discharge on June 1, 2017, the Veteran was re-admitted by the police on June 9, 2017. The Veteran was brought in handcuffs, and was displaying combative behavior, was verbally abusive, and was psychotic and hallucinating. At the time of the September 2020 virtual Board hearing, the Veteran testified that following the above in-patient treatment, the Veteran was diagnosed with bipolar disorder/schizophrenia and put on medications to treat the hallucinations; specifically, shots administered biweekly. Unfortunately, while the medications treat the hallucinations to an extent, the Veteran credibly testified that the hallucinations often reoccur just prior to the next shot being administered. This testimony is supported by the other evidence of record. For example, per an April 2018 VA treatment record, despite being on medications, the Veteran continued to experience occasional auditory hallucinations. Further, in July 2018, the Veteran conveyed seeing shadows when not on medication, and in January 2019, the Veteran again advanced having occasional auditory hallucinations. Considering the recurring nature of the Veteran's hallucinations prior to receiving a new dose of the biweekly mental health medication, the Board finds the Veteran's hallucinations to be persistent in nature. As discussed above, peristent hallucinations are contemplated by the 100 percent total rating criteria for PTSD. Further, the Board notes that the Veteran received a VA mental health examination in November 2018. Pertinent to the instant decision, at that time the VA examiner found that the Veteran was experiencing an intermittent inability to perform activities of daily living, to include maintenance of minimal personal hygiene. Per the above, such a decline in personal hygiene and the ability to perform activities of daily living is specifically contemplated by the 100 percent disability rating criteria under the General Rating Formula for Mental Disorders. A review of the other medical evidence of record supports the VA examiner's findings in November 2018. After a review of all the evidence, lay and medical, the Board finds that, from July 3, 2017, the severity, frequency, and duration of the symptoms of the service connected PTSD more nearly approximated total occupational and social impairment, as required for a total disability rating of 100 percent under Diagnostic Code 9411. A review of the lay and medical evidence of record supports that, for the entire initial rating period on appeal, the Veteran persistently manifested hallucinations and had intermittent inability to perform activities of daily living, to include maintenance of minimal personal hygiene, which are contemplated by the 100 percent schedular rating criteria. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence shows that a higher initial disability rating of 100 percent, the maximum schedular rating, is warranted for the service connected PTSD for the entire initial rating period on appeal from July 3, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. 2. An Earlier Effective Date for PTSD is Denied. Except as specifically provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. As to what constitutes a claim, 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" means a communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Effective 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. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). 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, appropriate to the benefit sought within one-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. Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant 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 the Veteran, 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 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (2014). Reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157(a) (2014). Significantly, receipt of such reports of examination or hospitalization may only be accepted as an informal claim for increased benefits if a formal claim for compensation has been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) (2014). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2014). The Veteran seeks an effective date prior to July 13, 2017 for the grant of service connection for PTSD. Review of the record reflects that the Veteran filed a claim for service connection for an acquired psychiatric disorder in April 2013. In a subsequent October 2013 rating decision, the RO denied service connection for an acquired psychiatric disorder. A supplemental claim for service connection for an acquired psychiatric disorder was received by VA in November 2013, and service connection for an acquired psychiatric disorder (to include PTSD and anxiety) was again denied in a March 2015 RO rating decision. The March 2015 rating decision subsequently became final, as the Veteran did not file a timely notice of disagreement (NOD) to the rating decision, and no new and material evidence was received during the one year appeal period following that decision. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.302, 20.1103. An intent to file a claim to reopen service connection for the acquired psychiatric disorder of PTSD was received on July 3, 2017. In a subsequent September 2017 rating decision, the RO granted service connection for PTSD effective July 3, 2017, the date of intent to file. Review of the record reflects that no claim, formal or informal, to reopen service connection for PTSD (or any other acquired psychiatric disorder) was received by VA during the period from March 2015 to July 3, 2017. The Board has read and considered the Veteran's arguments as to why an effective dater earlier than July 3, 2017 for service connection for PTSD might be warranted. While no argument was raised at the time of the September 2020 virtual Board hearing, in a November 2018 brief, the Veteran's attorney argued that "the Veteran originally filed for service connection for his mental health condition on April 9, 2013, which was within one year of his discharge on January 23, 2013." Again, as discussed above, following receipt of the original claim for service connection and a subsequent supplemental claim, the issue of service connection for an acquired psychiatric disorder was adjudicated and denied in a March 2015 rating decision, which subsequently became final. The pertinent legal authority governing effective dates for reopened claims is clear and specific, and the Board is bound by such authority. While entitlement to service connection may have arisen earlier, the date entitlement arose does not decide the effective date in this reopening case; the later date of the claim to reopen controls the effective date. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant's claim to reopen or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). On these facts, the earliest effective date legally possible has been assigned under 38 C.F.R. § 3.400, the date of receipt of the intent to file a claim to reopen service connection. As an effective date for service connection earlier than July 3, 2017 (date of receipt of intent to file a claim to reopen service connection) is not provided by law or regulation, the appeal for an earlier effective date as to the issue of service connection for PTSD is without legal merit, so must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, an effective date prior to July 3, 2017 for the award of service connection for PTSD is denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.