Citation Nr: 21070210 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 19-08 928A DATE: November 23, 2021 ORDER Entitlement to an effective date of May 7, 2012, for the assignment of a 70 percent disability rating for posttraumatic stress disorder (PTSD), unspecified anxiety disorder, and major depressive disorder, is granted. FINDING OF FACT The evidence indicates that from May 7, 2012, the service-connected acquired psychiatric disability has caused deficiencies in most areas of the Veteran's life. CONCLUSION OF LAW The criteria for an effective date of May 7, 2012 for the assignment of a 70 percent rating for service-connected acquired psychiatric disability are met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2006 to May 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Veteran testified in a hearing before the Board. A transcript of the hearing is included in the electronic claims file and has been reviewed. Earlier Effective Date On October 6, 2011, the Veteran filed a claim of entitlement to service connection for an acquired psychiatric disorder. The RO denied the claim in a December 2012 rating decision the Veteran appealed to the Board. During the appeal period, in a November 2017 rating decision, the RO reversed its decision and granted the claim. The RO assigned a 30 percent disability rating effective the date of original claim on October 6, 2011, and a 70 percent rating effective July 11, 2017. The Veteran appealed the effective date assigned for the increase in rating to 70 percent. Later in the appeal period, in an April 2020 rating decision, the RO reduced the 70 percent rating to 30 percent. Then the RO restored the 70 percent rating in a July 2020 rating decision. Lastly, in a June 2021 rating decision, the RO assigned a 100 percent rating effective May 15, 2021. In sum, the Veteran's psychiatric disability has been rated 30 percent disabling between October 6, 2011 and July 11, 2017, 70 percent disabling between July 11, 2017 and May 15, 2021, and 100 percent disabling since then. The question before the Board is whether the 70 percent rating should take effect between October 6, 2011 and July 11, 2017, the period of time during which acquired psychiatric disability was rated 30 percent disabling. Relevant legal authority The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, the effective date of a disability rating will be the date of receipt of claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Acquired psychiatric disability is rated under 38 C.F.R. § 4.130. The RO rated the Veteran's acquired psychiatric disability under DC 9411, which addresses PTSD. 38 C.F.R. § 4.130. This DC authorizes compensable ratings of 10, 30, 50, 70, and 100 percent. As the question before the Board concerns the 70 percent rating, the Board's inquiry will focus on whether the criteria for that rating have been approximated during the relevant time period between October 6, 2011 and July 11, 2017. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Diagnostic Code 9411 and other DCs addressing psychiatric disabilities are addressed under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. A 70 percent rating is warranted for 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 worklike setting); inability to establish and maintain effective relationships. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. Evidence and analysis The relevant evidence consists of lay assertions from the Veteran and his colleagues and family members, private and VA treatment records, and a VA compensation examination report dated in May 2012. This evidence indicates that psychiatric disability caused deficiencies in most areas of the Veteran's life between May 7, 2012 and July 11, 2017. The evidence dated prior to May 7, 2012 does not indicate that the criteria for a 70 percent rating was met under DC 9411. The evidence dated during this period consists mainly of VA treatment records. These records indicate that the Veteran experienced anxiety, depression, and anger in what medical personnel considered to be an adjustment disorder due to service in Iraq. But the evidence dated before May 2012 repeatedly indicates an absence of suicidal or homicidal ideation or "obsessional rituals" and shows that the Veteran's speech was logical, clear, and relevant. The Veteran did not report panic attacks during this time period, and the evidence did not indicate that his depressed moods were "near-continuous" and affecting his ability to function "independently, appropriately, and effectively" during the relevant time period. The evidence shows irritability and anger, but not an impaired impulse control leading to periods of violence. The VA treatment records dated prior to May 2012 indicate that medical professionals who interacted with the Veteran found him oriented, coherent, cooperative, alert, linear, goal-directed, adequately attired and groomed, with fair judgment, sufficient concentration and memory, normal speech, a congruent mood and affect, and without evidence of a thought disorder. By contrast, certain criteria for a 70 percent rating are approximated in the May 7, 2012 VA report. See Mauerhan, supra. As noted in the VA treatment records, the Veteran repeatedly denied suicidal ideations between 2010 and 2012. But the VA report clearly indicates suicidal ideation. The report notes the Veteran as stating that he repeatedly thought of suicide and that he would "stare at my pistol, but I didn't have the courage to do it. A lot of times I wished I would die in a car wreck be done with it. But I was a coward, couldn't do it. Even these days when I have a bad week, get in a bad argument with my wife, I just wish I would die." Further, the May 2012 report indicates unprovoked irritability with episodes of menacing behavior. The Veteran described traveling with weapons and preparing to kill if necessary. In considering a potential terrorist attack, he indicated he was "ready to kill anybody that needs to be killed" when attending public events. He also described an incident in which he approached his window with a weapon believing a man stood outside looking in at his wife. And the report also indicates the Veteran was overwhelmed from the residual effect of service in Iraq, and lacked the focus, concentration, and energy to adapt to stressful circumstances involved in his marriage, family life, work, and school, which affected his ability to relate to his wife and others. Private and VA treatment records dated after May 2012 indicate a continued level of severity not only with suicidal ideation, but also with periods of intense irritability and anger and the risk of violence. The bulk of the evidence reinforces the notion that stressful circumstances have hindered the Veteran's ability to engage in productive relationship at home and at school and work. The Board has also reviewed the dozens of lay statements from family, friends, and colleagues, who attest to the Veteran's difficulty in adapting to the stressful circumstances related to his family and professional life, and his inability to maintain effective relationships. In sum, certain criteria reserved for a 70 percent rating are approximated since May 2012. Based on the foregoing evidence, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to an earlier effective for the increase in rating to 70 percent. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.