Citation Nr: 21069101 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 15-23 838 DATE: November 17, 2021 ORDER New and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer; the appeal is granted to this extent only. Entitlement to service connection for prostate cancer is denied. Entitlement to an initial rating for posttraumatic stress disorder (PTSD) in excess of 50 percent, prior to November 19, 2018, and in excess of 70 percent, from November 19, 2018, is denied. FINDINGS OF FACT 1. The Veteran did not file a substantive appeal to the November 2008 statement of the case (SOC) that denied a claim to reopen a prior claim for entitlement to service connection for prostate cancer. Thus, the November 2007 rating decision from which the SOC originated became final. 2. Additional evidence received since the final November 2007 rating decision is neither cumulative nor redundant of the evidence previously of record and raises a reasonable possibility of substantiating the claims for service connection for prostate cancer. 3. The preponderance of the evidence is against finding that the Veteran has or has had, at any point in the appellate period, prostate cancer. 4. The preponderance of the evidence reveals that the Veteran's PTSD does not result in occupational and social impairment with deficiencies in most areas prior to November 19, 2018, or in total occupational and social impairment thereafter. CONCLUSIONS OF LAW 1. The November 2007 rating decision denying the Veteran's claim of entitlement to service connection for prostate cancer is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for prostate cancer have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to an initial rating for PTSD in excess of 50 percent, prior to November 19, 2018, and in excess of 70 percent, from November 19, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to July 1970. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board denied claims to reopen previously denied claims for entitlement to service connection for prostate cancer and bladder cancer, and a claim for entitlement to an initial rating in excess of 50 percent for PTSD. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In September 2019, pursuant to a Joint Motion for Remand (JMR), the Court vacated the Board's November 2018 denial and remanded the matter to the Board for compliance with the instructions included in the parties' JMR. The parties agreed that the Board did not discuss the Veteran's December 2015 request for a hearing with a Decision Review Officer (DRO). The Board remanded the claim in February 2020 for further development by the RO, as consistent with the JMR. A petition to reopen a claim for service connection for bladder cancer and a TDIU claim were also remanded. The Board finds that there was substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The February 2020 Board remand directed the agency of original jurisdiction (AOJ) to schedule the Veteran for a hearing before a Decision Review Officer (DRO); develop a claim for a total disability rating based on individual unemployability (TDIU); and readjudicate the claims on appeal, to include issuing a supplemental statement of the case (SSOC) in the event of a denial. The record shows that in March 2021, the Veteran, through his agent, requested a virtual hearing with a DRO. In August 2021 a telephone hearing was held between the Veteran's agent and a DRO. The informal conference report noted that the DRO and the agent discussed each of the issues on appeal. Moreover, the RO granted a TDIU, effective June 20, 2014, in an August 2021 rating decision. The TDIU is in effect for the entire appeal period of the PTSD claim. The RO also granted service connection for bladder cancer residuals and erectile dysfunction, as well as special monthly compensation (SMC) based on loss of use of a creative organ, all effective August 31, 2005, in a July 2021 rating decision. As this is a full grant of these issues, they are no longer in appellate status. In a December 2018 rating decision, the RO increased the Veteran's rating for PTSD from 50 percent to 70 percent, effective November 19, 2018. As this is not the maximum rating, the issue remains on appeal. For the remaining issues on appeal, to include whether new and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer and entitlement to an initial rating in excess of 50 percent for PTSD prior to November 19, 2018, and in excess of 70 percent, thereafter, the RO issued an August 2021 SSOC. Therefore, the Board will proceed with adjudication of the claim. 1. New and material evidence has been received to reopen the claim of entitlement to service connection for prostate cancer; the appeal is granted to this extent only The Veteran's claim of entitlement to service connection for prostate cancer was denied in a March 2006 rating decision on the basis that the Veteran did not have a diagnosis of prostate cancer. The Veteran did not appeal the March 2006 rating decision, and no evidence was received within one year of the RO decision. 38 C.F.R. § 3.156(b). Accordingly, the March 2006 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed a petition to reopen in April 2007. The RO denied the claim to reopen in a November 2007 rating decision on the basis that there was no new and material evidence received sufficient to reopen the claim. The Veteran filed an NOD, and the RO denied the claim to reopen in a November 2008 SOC on the basis that there was no new and material evidence received sufficient to reopen the claim. No substantive appeal was filed. In the absence of a properly perfected appeal, the RO may close the appeal and the decision becomes final. 38 U.S.C. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. The RO did so in this case, as evidenced by the fact that it did not certify the issue to the Board following the November 2008 SOC. Accordingly, the November 2007 rating decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran next filed the present claim to reopen in June 2014. The RO denied the claim to reopen in a January 2015 rating decision on the basis that there was no new and material evidence received sufficient to reopen the claim. This does not affect the finality of the November 2007 rating decision. The Board finds that there is a sufficient evidentiary basis to reopen the claim for service connection for prostate cancer. New evidence received since the last final denial in November 2007 includes updated VA treatment records, to include VA examinations dated October 2014 and April 2021, and private medical treatment records, that the Board finds provides sufficient basis to reopen. Moreover, in July 2021, the RO granted service connection for bladder cancer residuals and erectile dysfunction, as well as SMC for loss of use of a creative organ, all effective August 31, 2005. Given that the record shows that the Veteran underwent a prostatectomy as a result of his bladder condition, which is now service connected, the Board finds that this further warrants a reopening of the claim in order to address whether service connection may be warranted for a prostate condition, specifically, residuals of a prostatectomy, as secondary to the service-connected bladder disability. Thus, the Board finds that the submitted evidence constitutes new and material evidence which directly relates to an unestablished fact necessary to substantiate the Veteran's claim. Accordingly, as new and material evidence has been received, the Board finds that the claim for service connection for prostate cancer is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. Entitlement to service connection for prostate cancer The Board finds that the preponderance of the evidence does not show that Veteran has prostate cancer that is related to service. Thus, an award of service connection is not warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). The record does not show that the Veteran currently has or has had prostate cancer at any point during the appellate period. The Veteran underwent a VA examination in February 2006. The examiner indicated having completed a detailed review of the claims file and noted multiple relevant treatment records, to include pathology reports. The examiner noted a diagnosis of papillary transitional cell carcinoma of the bladder, status post radical cystoprostatectomy with ileal loop urinary division. The examiner further noted that the Veteran's prostate was found to have prostatic intraepithelial neoplasia, which is a precursor to prostate cancer and reflects an increased risk of developing prostate cancer but does not reflect the presence of prostate cancer and the risk is now absent because his prostate was removed secondary to bladder cancer treatment. The examiner concluded that, based on a review of the file and examination, the Veteran did not have prostate cancer, but rather that his impairments are secondary to bladder cancer. The opinion was adequate because it provided a well-reasoned explanation as to why the Veteran did not have prostate cancer. The Veteran underwent a second VA examination in October 2014. The examiner indicated having reviewed the file and noted relevant incidents in the Veteran's medical history, to include a 2002 biopsy showing transitional cell carcinoma Grade 2-3/4 with invasion of the underlying muscular wall for which he underwent a cystectomy and prostatectomy with ileal loop diversion for a urinary bag in October 2002 followed by chemotherapy for 18 weeks; through the years, the Veteran was closely surveilled and has not had any recurrence of cancer. The examiner also noted a surgical pathology report dated October 2002 noting poorly differentiated urothelial carcinoma, high grade, where no cancer was noted in the prostate and the prostate was negative for frank malignancy. The examiner stated that the Veteran underwent a prostatectomy for advancing bladder cancer and that the record confirmed that there was no cancer of the prostate. The examiner also stated that the Veteran's erectile dysfunction and use of a urostomy bag are all related to bladder cancer treatment. This examination report is probative evidence against the claim because it shows that the Veteran did not have prostate cancer and that his prostatectomy was due to his bladder cancer. The Veteran underwent a third VA examination in April 2021. The examiner noted an October 2002 pathology report noting no prostate cancer. The Veteran also submitted multiple private treatment records; however, these do not indicate the presence of any prostate cancer. This opinion is also probative evidence against the Veteran's claim. The first element of service connection, the existence of a current disability, is not satisfied because the Veteran has not had prostate cancer. The Board acknowledges the favorable evidence of record. Multiple VA examiners have noted that the Veteran's prostatectomy was due to his bladder cancer. The Veteran is presently service connected for bladder cancer residuals and in receipt of a 60 percent rating effective August 31, 2005. He is also service connected for erectile dysfunction and in receipt of a noncompensable rating, effective August 31, 2005, as well as an award of SMC for loss of use of a creative organ, effective August 31, 2005. See July 2021 rating decision. The record shows that the Veteran's prostatectomy-related symptoms are covered by the ratings and awards for bladder cancer residuals, erectile dysfunction, and loss of use of a creative organ. See July 2021 rating decision. With regards to the Veteran's prostatectomy, to separately compensate a veteran for the same symptoms of another service-connected disability would constitute impermissible pyramiding. 38 C.F.R. § 4.14. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Here, no VA examiner or medical treatment record has noted the presence of symptoms resulting from the prostatectomy that are distinct from the service-connected disabilities of bladder cancer residuals, erectile dysfunction and loss of use of a creative organ. Thus, a separate award of service connection, under either a direct or secondary theory of entitlement, for residuals of a prostatectomy is not warranted. The Board acknowledges the additional favorable evidence of record. Concerning the in-service event, the RO made a favorable finding that herbicide agent exposure is conceded. See November 2008 SOC; July 2021 rating decision. Moreover, prostate cancer is on the list of presumptively service-connected diseases associated with exposure to herbicide agents. See 38 C.F.R. § 3.309(e). However, in the absence of a diagnosis of prostate canceror a prostate condition not already covered by the ratings and awards set out aboveat any point throughout the appellate claim, the favorable finding is insufficient to warrant a grant. The Board also notes that the record contains VA and private medical treatment records noting prostate cancer in 2002 in a list regarding past medical history; the presence of "metastatic prostate and bladder cancer;" and a history of prostate/bladder cancer. See private medical treatment records received by VA in June 2021; VA treatment records received in July 2021. However, these brief conclusory notations, without more, are insufficient to establish the presence of a diagnosis of prostate canceror any prostate condition not already covered by the ratings and awards set out above. The specific and well-reasoned findings of the VA examiners are entitled to greater probative weight. The preponderance of the medical evidence, as set out above, is against such a finding. Although the Board has carefully considered the lay contentions of record suggesting that the Veteran has prostate cancer and that it began during service, the Board ultimately cannot grant an award of service connection solely on this basis. In order to grant an award, all legal requirements must be satisfied, to include the requisite diagnosis and competent medical opinion. The Veteran in this case is not competent to provide a diagnosis or nexus opinion regarding this issue. The issue is medically complex. He does not have the requisite specialized knowledge, training, or credentials to self-diagnose prostate cancer. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Neither the Veteran nor his representative have presented or identified any medical opinion or treatment record that supports the presence of a current disability whether it be prostate cancer, or any prostate condition not already covered by the ratings and awards set out aboveor a nexus to service. Thus, the elements of service connection are not satisfied. In sum, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine cannot be applied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Thus, service connection for prostate cancer is not warranted. 3. Entitlement to an initial rating for PTSD in excess of 50 percent, prior to November 19, 2018, and in excess of 70 percent, from November 19, 2018 A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as 'staged ratings.' Fenderson v. West, 12 Vet. App. 119, 12627 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner's assessment of the level of disability at the moment of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. PTSD, DC 9411, is rated under the schedule of ratings for mental disorders, 38 C.F.R. § 4.130. The rating criteria are as follows: A noncompensable rating is warranted where a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is 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. A 70 percent rating is warranted where there is 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. A 100 percent rating is warranted 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. "Total" is defined as "whole, not divided; full; complete," and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board finds that based on the review of the lay and medical evidence regarding the Veteran's occupational and social impairment, the evidence weighs against a rating in excess of the currently assigned 50 percent rating from June 20, 2014, and 70 percent from November 19, 2018. The record does not establish that for the period prior to November 19, 2018, the Veteran's disability manifested by symptoms such as suicidal ideation, obsessional rituals that 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 worklike setting); or an inability to establish and maintain effective relationships. Further, the record does not establish that the Veteran has occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Turning to the medical evidence of record, the November 2014 VA examination noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. While the examination noted difficulty in establishing and maintaining relationships, the examiner also noted that the Veteran is presently in a decades-long marriage and resides with his wife. Though the Veteran reported isolating and only occasionally engaging in hobbies due to difficulty with finding pleasure in most activities, he also reported having friends. This shows that his impairment regarding relationships is of the severity contemplated by the 50 percent rating: "difficulty," as opposed to the more severe "inability" that is described in the 70 percent criteria. The examiner noted that the Veteran was well-groomed, alert and oriented; eye contact was appropriate, and speech was normal; he was tearful on occasion but maintained his composure throughout the evaluation; his thought process was logical, coherent, goal-directed and he had normal thought content; there was no evidence of auditory or visual hallucinations and the Veteran denied suicidal or homicidal ideation; his insight and judgment appeared to be grossly intact. A May 2017 VA treatment record noted that the Veteran last sought treatment in 2006 and that he felt very sad. In the past he did not speak to his wife about his military service, but he would now like to discuss it with someone because he felt comfortably crying. He denied any suicidal or homicidal ideation. His PHQ-2 score was 1, which is a "negative screen for depression." A June 2017 VA treatment record noted that he is very anxious and can get emotional and cry at times; he reported having a short temper and blowing up at his wife, as well as difficulty sleeping. Chronic sleep impairment is expressly contemplated by the 30 percent criteria. He denied a past history of suicidal acts or self-harm. He reported anger issues but denied violence or assault. He worked as a fire marshal through December 2015 but did not discuss whether his PTSD impacted his job. The examiner noted that he was neatly dressed and well groomed; made good eye contact; his speech was normal; his thought content and process was logical and coherent; his mood was pensive but engaged; his insight was reasonably good; his judgment appeared intact; there was no evidence of psychosis. He reported feeling more emotional and became tearful; the examiner noted that this was not unusual given his retirement and health issues. The Veteran denied suicidal or homicidal ideation. The examiner noted a longterm marriage, strong family support, financial stability, productive work history, and no past history of suicidal or homicidal ideation. He was deemed to be at low risk for harming himself or others. An October 2017 VA treatment record noted depression but no suicidal or homicidal ideation. A December 2017 VA mental health treatment report showed that the Veteran's PHQ-9 score was 4, which is a "positive screen for depression." Later, a May 2018 VA mental health treatment record documented that the Veteran's PHQ-9 score was 6, which "is suggestive of mild depression." The Board notes that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas and can support a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). However, multiple VA treatment records and examination reports, as cited above, do not show the presence of suicidal ideation prior to November 19, 2018. The Veteran reported having depression and anxiety. However, the severity of his depression is more closely described by the 50 percent criteria. Simply because the Veteran has depressed mood and anxiety, and the 70 percent level contemplates a deficiency in "mood" among other areas, does not mean his PTSD rises to the 70 percent level. The 30, 50, and 70 percent levels each contemplate some form of mood impairment. Here, the severity of the Veteran's depressed mood and anxiety is best contemplated by the 50 percent criteria, a "disturbance" in mood. At one point during the appeal period his depression was described as "mild." The 70 percent criteria contemplate a frequency of "near continuous" and a severity that impacts the Veteran's ability to function independently. The evidence does not show near-continuous depression or anxiety, and it does not show that the Veteran has been unable to function independently. The record does not show how the Veteran's PTSD causes reduced reliability and productivity. The record does not show that at work, his PTSD impaired his ability to be productive at work. A May 2018 VA mental health note stated that he was considering returning to the Fire Department as a volunteer to train new recruits and volunteers. Additionally, the symptoms did not interfere with his ability to be productive at home. He was independent in his activities of daily living, competent to manage his funds, and did not require assistance for tasks due to his PTSD symptoms. Additionally, the record does not show that his PTSD impaired his ability to be reliable, that is, to be trusted or perform consistently well. In June 2017, the Veteran reported having a short temper and that he could "blow up with anger" at his wife and say hurtful things to her. In May 2018, he reported a quick temper and saying hurtful things to his wife, and that he felt bad after he did so. The Board finds that two reports of verbal outbursts at his wife while angry is not of the frequency, severity, or duration to be more accurately described by the 70 percent criteria. The record does not show that he was ever actually violent or had threatened violence during periods of anger. The 70 percent criteria contemplate impaired impulse control such as unprovoked irritability with periods of violence. This is more severe than what the Veteran described at his mental health appointments. Additionally, the record did not document other forms of impaired impulse control. The 70 percent criteria also contemplate deficiencies in the areas of judgment and thinking. The record does not show a deficiency in judgment. In December 2017, a VA psychologist stated that his judgment appeared intact. The record also does not show impairment in thought process or content. Thus, a rating in excess of the currently assigned 50 percent prior to November 19, 2018, is not warranted. The Board finds that from November 19, 2018, the record does not establish that the Veteran's disability manifested by symptoms such 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 as to time or place; memory loss for names of close relatives, own former occupation, or own name. Further, the record does not establish that the Veteran has both total occupational and total social impairment. Turning to the medical evidence of record, the November 2018 VA examination noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran continued to report living with his long-term wife and having few friends. He reported an increase in multiple symptoms, to include: intrusive memories, traumatic nightmares, physiological reactivity, avoidance of external reminders, alienation from others, constricted affect and anhedonia, diminished interest in activities, chronically disturbed sleep, episodes of uncontrolled anger and rage, difficulty concentrating, obsessive hypervigilance, exaggerated startle response, depressed mood, fatigue, passive suicidal ideation, feelings of worthlessness and guilt, and avoiding thoughts and feelings. The examiner noted that his symptoms were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective relationships, difficulty in adapting to stressful circumstances, obsessional rituals, and impaired impulse control. The examiner noted that the Veteran was adequately groomed; alert and oriented; made appropriate eye contact; had normal, logical, and goal-directed speech; and was cooperative and appropriate. His affect was flattened. The Veteran denied auditory or visual hallucinations as well as symptoms of psychosis or mania. The Veteran also denied current active suicidal or homicidal ideation and was assessed to be of no danger to himself or others. The Veteran acknowledged passive suicidal ideation but denied intent, access, or plan. The examiner also noted that his insight and judgment appeared to be grossly intact. A VA treatment record from May 2019 noted a history of depression, that the Veteran had been "opening up" to Dr. C., and that he was told to come only as needed for mental health treatment. A review of symptoms stated that he did not have anxiety or depression. VA treatment records dated December 2019, May 2020, and May 2021 noted that the Veteran's depression was stable; no suicidal or homicidal ideation were noted; and the Veteran reported that he was not interested in receiving any further treatment. The Veteran has been awarded a TDIU. This was primarily due to his bladder cancer and its residuals. Even if total occupational impairment was due to his PTSD, total social impairment is not shown. The Veteran has been married to the same person for decades. He reported having a "few" friends. Although his PTSD clearly impacts his relationships with other people, he is not completely and utterly socially impaired, as he is able to maintain relationships. The Veteran has contended that his disability warrants a 70 percent rating throughout the appellate period. See October 2019 NOD. Here, the RO granted a staged rating, and the effective date for the Veteran's 70 percent rating is assigned as November 19, 2018, which is the date the Veteran filed for an increased rating for PTSD, following the Board denial in November 2018 and preceding the Court vacating the denial in September 2019. See December 2018 rating decision. Here, the RO selected the date of the November 2018 examination for an increased rating as the effective date of the 70 percent rating. For initial rating claims and increased rating claims, "the effective date can be no earlier than the date it was factually ascertainable" that a veteran's disability was diagnosed or worsened. Swain v. McDonald, 27 Vet. App. 219, 224 n. 4 (2015). The effective date should not be "assigned mechanically" as of the date of an examination. Id. at 224. There must be a factual basis for choosing an earlier date. The information in the examination report of November 19, 2018, is the first indication of record that the Veteran's disability had increased in severity, and it does not provide a factual basis for choosing an earlier date. The examination report does not state when the Veteran's PTSD symptoms became worse. Furthermore, the Veteran did not submit any other statement as to when his PTSD disability increased in severity. The Veteran did not contend a worsening of his disability in any pertinent submissions. See the October 2019 NOD or November 2018 VA Form 21-526EZ (fully developed claim). The Veteran also filed for an increased rating for PTSD in October 2018, during the pendency of the claim; however, he did not allege worsening or the presence of increased or additional symptoms. See October 2018 VA Form 21-526EZ (fully developed claim, noting only ongoing VA treatment for his disabilities). The Veteran did not present any arguments regarding any record evidence demonstrating an increase in severity prior to the November 2018 examination report. Thus, in the present case, use of the date of the VA examination, is appropriate because there is no factual basis in the evidence of record to provide for an earlier date. The Board has carefully considered the frequency, severity, and duration of the Veteran's reported symptoms as well as the level of impairment contemplated by the various levels delineated in the rating schedule and finds that the disability picture presented by the Veteran's PTSD results in a 50 percent disability rating, but no higher, prior to November 19, 2018, and a 70 percent rating, but no higher, thereafter. Accordingly, the Board concludes that the preponderance of the evidence indicates that the Veteran is not entitled to rating in excess of 50 percent, prior to November 19, 2018, and in excess of 70 percent rating, thereafter. Gilbert v. Derwinski, 1 Vet. App. 49 (1990), 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Minaya, 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.