Citation Nr: 21071255 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-05 991A DATE: November 30, 2021 ORDER Entitlement to an effective date prior to September 29, 2016 for an increased rating for post-traumatic stress disorder (PTSD) is denied. Entitlement to an increased rating in excess of 70 percent disabling for PTSD is denied. FINDINGS OF FACT 1. After the final November 2009 rating decision that confirmed and continued a 50 percent rating for PTSD, the Veteran did not file a formal or informal claim for an increased rating for PTSD until September 29, 2016, when he filed a VA 21-526EZ Fully Developed Claim claiming entitlement to an increased rating for PTSD. 2. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment for any portion of the rating period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement an effective date prior to September 29, 2016 for an increased rating for have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. 2. The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to July 2003. This matter comes before the Board from a December 2016 rating decision that confirmed and continued a 50 percent rating for PTSD. She filed a notice of disagreement (NOD) in March 2017, which not only challenged the 50 percent rating but also the effective date of the award, although the December 2016 rating did not specifically address any effective date issue. Subsequently, while the NOD was pending the RO issued a rating in December 2017 which granted a 70 percent rating effective September 29, 2016, the date of the increased rating claim. A 50 percent rating remained in effect prior to September 29, 2016, dating back to August 18, 2004. The same date as this December 2017 rating, a statement of the case (SOC) was issued which incorporated the 70 percent grant, and denied a rating in excess of 70 percent disabling which was in effect from September 29, 2016.The Veteran perfected this appeal by submitting a VA Form I-9 on February 1, 2018, which challenged both the 70 percent rating and the September 29, 2016 effective date assigned for this rating. The Veteran also filed a NOD with the December 2017 rating and effective date in December 2018, and was advised by a letter dated later the same month that the increased rating matter was already on appeal. The Veteran testified before the undersigned at a hearing held in February 2021. A transcript of the hearing is associated with the claims file. The Veteran has expressed disagreement with the September 29, 2016 effective date of the rating assigned for PTSD as shown in the March 2017 NOD, and the February 2018 I-9. The December 2017 SOC considered the effective date on a cursory basis as part and parcel of the adjudication of the 70 percent rating. Because of the effective date issue raised by the Veteran, the Board has bifurcated the effective date issue into a separate matter from the increased rating issue. The Board further notes that a claim for total rating for compensation purposes based on individual unemployability (TDIU), had been raised as part and parcel of the increased rating claim for PTSD pursuant to the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447(2009). This matter was addressed as part of the increased rating claim at the Board hearing of February 2021. However, subsequently the RO in a February 2021 rating issued a separate rating denying entitlement to TDIU. This rating constitutes an initial decision issued after February 19, 2019; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran filed a VA 10182 NOD in March 2021 challenging the TDIU denial and requesting a hearing. Because this is under an entirely different system from the present appeal of entitlement to a higher schedular evaluation for PTSD which remains under the pre AMA legacy system, the Board will limit adjudication of the increased rating appeal to consideration of the PTSD rating under the legacy system. The TDIU matter will be addressed in a separate decision at a later date under the AMA hearing lane. The Board remanded this matter for further development in June 2021. Such has been completed and this matter is returned to the Board for further consideration. 1. Effective date for an increased rating for PTSD Generally, the effective date for service connection is the later of the date of the receipt of the claim, or the date entitlement arose when the claim is received more than one year following separation from service. 38 C.F.R. § 3.400. For reopened claims, the effective date is the date of the receipt of claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). 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 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. Because the Veteran's claim was received by VA after that date, the amended regulations apply for effective date purposes, thus the Board cannot consider the regulations in effect prior to March 24, 2015 that provide for constructive receipt of VA hospital reports or other VA medical records for claim purposes. A Veteran may submit an intent to file a claim for benefits. 38 C.F.R. § 3.155 (b). If VA thereafter receives a complete application for the benefit sought on a form prescribed by the Secretary with one year of receipt of the intent to file a claim, VA will consider the complete claim to have been filed as of the date the intent to file a claim was received. See id. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Procedurally, service connection for posttraumatic stress disorder (PTSD) was granted in a January 2005 rating decision which assigned an initial 50 percent rating effective from August 18, 2004 the date of original claim. He did not appeal this decision. The 50 percent rating was confirmed and continued in subsequent rating decisions of August 2006, and November 2009, which were not appealed. These decision are final. 38 C.F.R. § 3.156 (b). Thereafter, the Veteran did not submit an intent to file, or file a formal or informal claim for entitlement to an increased rating for PTSD prior to submitting a VA 21-526EZ Fully Developed Claim on September 29, 2016 which was adjudicated by the December 2016 rating on appeal. Although the effective date was not adjudicated in the December 2016 rating decision which continued the 50 percent rating and which the Veteran initiated an appeal of, downstream adjudications of a rating and SOC simultaneously dated on December 14, 2017 as described in the introduction, granted a 70 percent rating for PTSD, and assigned an effective date of September 29, 2016 for this increase. Because the Veteran perfected the appeal that includes this rating which adjudicated an effective date for the increased rating, this matter does not involve a freestanding effective date claim which distinguishes it from the Court of Appeals for Veterans' Claims decision in Rudd v. Nicholson, 20 Vet. App. 296 (2006)(finding that the proper disposition of a freestanding claim for effective date is dismissal). However, the Board finds that there are no communications between the last prior final rating of November 2009 and the September 29, 2016 claim that can be reasonably construed to be as an application or claim. Further, although there are VA medical treatment records pertaining to PTSD treatment received within a year prior to this claim, constructive receipt of these records as an informal claim is not applicable in this instance where the claim was filed after March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form and eliminated constructive receipt. Accordingly, an effective date prior to September 29, 2016 for entitlement to an increased rating for PTSD is not warranted. 38 C.F.R. § 3.400 (r). 2. Entitlement to an increased rating for PTSD currently rated 70 percent disabling The Veteran contends that her PTSD symptoms are more severe than currently evaluated. At her February 2021 hearing she testified that she mostly stays to herself in one room except to go out and walk the dog. She reported having groceries delivered to her house and previously had a panic attack at the grocery store before. She also reported panic attacks at VA appointments and slowed her appointments due to this. She was living with her mother, but they did not interact much, and she said her family avoided her because nobody knows how to deal with her due to her symptoms. She indicated she was on a waiting list for treatment but needed permission from a VA therapist. Transcript pg. 4-7. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation, or own name. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with no more than a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. Mental status examinations in VA and private treatment records and the February 2021 VA examination indicate that the Veteran had generally unremarkable mental status examination findings. During the February 2021 VA examination, which diagnosed PTSD, the Veteran reported that she was never married, and had no significant other or children. She also denied having hobbies, interests, or friends. She avoided leaving the house, only going outside to walk her dog She had occupational and social impairment with reduced reliability. She last worked in 2016. She was last treated in mental health in 2017 and currently took no psychiatric medications. She had no history of suicide attempts. She had a remote history of being hospitalized in 2009 due to having a panic attack reportedly as side effect of psychiatric medication. She had no relevant legal or behavior history and no relevant substance abuse history. She was found to meet the criteria for PTSD. Her reported symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a worklike setting. Behavioral observations noted that in 2003 after her traumatic event she started feeling isolative, irritability, insomnia, anxious, depressed, hypervigilant and difficulty trusting people. These symptoms have continued since then. Her mood was mostly depressed and anxious with difficulty falling and staying asleep since 2003. She slept about 3-4 hours waking 3 to 4 times a night due to nightmares, night sweats and hypervigilance. She also had poor motivation, interest, energy, and concentration. She had a variable appetite. She had guilt with feelings of worthlessness and hopelessness. She had no suicidal ideations, homicidal ideations or audio or visual hallucinations. She can be verbally argumentative with anyone but no physical aggression. She had no history of major depressive, manic or psychotic episodes reported. She had excessive worry about the future and safety. She avoided crowds and closed spaces, sirens, groups of men because they can trigger panic attacks. Her affect was constricted, mildly dysphoric/anxious. She was casually dressed, reserved and cooperative. She avoided eye contact. The effect of her PTSD on her ability to function in an occupational environment included symptoms of being isolative, irritable, anxious, depressed, hypervigilant and had difficulty trusting people. She had poor motivation, interest, energy, concentration, and sleep. She can be verbally argumentative with anyone. She had decreased work productivity due to the above symptoms. Her suicide risk level was not at elevated acute risk. Her VA treatment records from the pendency of this appeal included an October 2016 record which showed the Veteran to be seen in counseling and lapsed into a full blown severe anxiety attack with shortness of breath when discussing her military trauma. The episode lasted 25 minutes. She otherwise responded well to supportive counseling, and reported that her attacks are usually followed by migraine headaches. It was felt she could benefit from medications to cope with her symptoms when she is out in public places. Other records from October 2016 revealed her mood to be disappointed and defeated and she had issues with mindfulness activities because they make her angry, anxious, and agitated. Also the same month, she was noted to have experienced triggers in the service including odors which precipitated intrusive memories of the incident. She also was noted to act out impulsively if she was significantly depressed or upset. She is noted to have repeatedly undergone individual, group therapy, arts and crafts therapy, anger management, CBT, and music therapy from October 2016 through the end of 2017. She also was noted to repeatedly be an active participant in her group therapies and her behavior was repeatedly noted to be unremarkable. In December 2016 she was noted to have not taken psychotropic medications since last being seen and was medication adverse with no intention of restarting her medications despite having no side effects. She described her mood as "crappy, angry" and was ambivalent about engaging in psychiatric care. Despite that she continued with treatment with a January 2017 record noting her to be actively engaged during symptom management groups. She reported difficulties traveling on trains and tried to manage her stressors and emotions. She also reported issues with sleep as described in records from May 2017, which detailed her sleeping only 4-6 hours of sleep with nightmares, and frequent awakening. She had a dog for an emotional support animal in the records, including in August 2017 when she reported that she had lingering depression and anxiety with a loss of interest in things and probably wouldn't go outside if she didn't have a dog. She requested renewal of a prescription for an emotional support animal in November 2017. None of the individual and group therapy records showed the Veteran to be an acute danger to herself, with multiple records showing no homicidal or suicidal ideations or attempts, although a history of suicidal ideation with vague plan was noted in an August 2017 record, which said that she endorsed having suicidal thoughts and a vague plan in May or June of 2017. This same record noted that the Veteran had no true intent to carry out any plans for self-harm as she thought about how it would negatively impact her mother and her dog would be left alone. Nor was she shown to have any evidence of a psychosis or major thought disorder. Further in an August 2017 record, although she reported isolation from others and indicated she lost friends due to becoming "hardened," she did report a good relationship with her mother who she lived with. She also had a close friend in California from boot camp as reported in records from March 2017 and August 2017. In October 2017 she described panic symptoms occurring about three times a month, and periods of depression but denied a currently depressed mood, and was noted to have normal mental status examination findings with no evidence of thought disorder, or of danger to herself or others. Records after 2017 are noted to have addressed treatment for other medical problems besides PTSD, although the diagnosis continued to be noted in the records. An April 2021 Vocational Assessment described the Veteran as being unemployable due to service connected disabilities including a left knee disorder and PTSD. The evaluator reviewed the treatment records and examination reports in the claims file and determined her employability was impacted both by orthopedic issues and PTSD symptoms including impaired sleeps, depression, flashbacks, depression, intrusive thoughts, anxiety, impaired focus, and panic attacks. The examiner indicated that her symptoms from PTSD would require frequent unscheduled breaks due to fatigue secondary to impaired sleep, panic attacks and flashbacks. Furthermore, her inability to concentrate for extended periods of time due to distracting PTSD symptoms such as depression, anxiety, panic attacks, flashbacks, intrusive thoughts, impaired sleep, poor energy, and hypervigilance, would likely render her off task during lapses in concentration. While the Veteran did experience some symptoms contemplated by a 70 percent rating, including social and occupational impairment with deficiencies in most areas due to symptoms including panic attacks, sleep impairment, impulsivity during periods of high stress, difficulty adapting to stressful circumstances and inability to establish and maintain effective relationships, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating or less. Throughout her participation in various therapeutic treatments including group therapy she was noted to be an active participant and no abnormal mental status findings were noted. The Board notes that the Veteran has a history of suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, throughout the pendency of this appeal, the Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, including during the February 2021 VA examination. Thus, a history of fleeting suicidal ideation with none clearly shown during the multiple therapy records and mental status evaluations, has not risen to the level contemplated by the 100 percent disability rating. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. As pointed out in the Introduction, the Board declines to address entitlement to TDIU at this time, as that appeal will be addressed in a separate decision under the AMA at a later date. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.