Citation Nr: 21072613 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-18 692A DATE: December 3, 2021 ORDER An earlier effective date of May 29, 2018, but no earlier, for the grant of an increased rating of 50 percent for the service-connected psychiatric disorder is granted. A higher rating of at least 70 percent for the service-connected psychiatric disorder is granted. REMANDED Entitlement to a rating in excess of 70 percent for the service-connected psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDINGS OF FACT 1. New and material evidence was received within a year of the July 2018 rating decision; as such, the decision did not become final. 2. The competent and probative evidence shows that the Veteran's psychiatric disorder is at least manifested as occupational and social impairment with deficiencies in most areas for the entire appeal period. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 29, 2018, but no earlier, for the grant of an increased rating of 50 percent are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.104, 3.155, 3.156, 3.400. 2. The criteria for a rating of at least 70 percent for psychiatric disorder are met. 38 U.S.C. §§ 1155; 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, DC 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1988 to December 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted an increased rating of 50 percent for the Veteran's psychiatric disorder, effective December 19, 2018. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. Furthermore, the Board notes that, at the May 2021 hearing, the Veteran raised the issue of a TDIU. He testified that due to his service-connected psychiatric disorder, he has experienced difficulty maintaining work and that the last time he worked fulltime was in 2020. See 5/4/2021 Hearing Transcript at pages 3, 7, and 8. A claim for a TDIU is part of an increased disability rating claim when such claim is raised by the record and when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability. This TDIU matter will be considered part and parcel of the claim for benefits for the underlying disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the Board has jurisdiction of the TDIU matter via Rice. 1. An earlier effective date prior to December 19, 2018, for the grant of an increased rating of 50 percent for the service-connected psychiatric disorder. Effective date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. For claims for an increase in a service-connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. The Veteran contends entitlement to an earlier effective date for the grant of an increased rating of 50 percent. See 2/27/2019 NOD. After careful review of the record, the Board finds that an effective date of May 29, 2018, but no earlier, for the grant of an increased rating of 50 percent for his psychiatric disorder is warranted. For background, the Veteran initially filed a formal claim for an increased rating for his psychiatric disorder in May 2018. See 5/29/2018 VA 21-526EZ. A July 2018 rating decision denied entitlement to an increased rating. Subsequently, in December 2018 the Veteran filed another claim for an increased rating for his psychiatric disorder. See 12/19/2018 VA 21-526EZ. Along with the claim, he filed a letter from private provider B.L.M., M.S. In the letter, B.L.M. shared the Veteran's observed symptoms and functional impairment due to his psychiatric disorder. See 12/19/2018 Medical Treatment Record Non-Government Facility. The United States Court of Appeals for Veterans Claims has consistently held that 38 C.F.R. § 3.156(b) requires VA to determine whether evidence submitted within one year after the issuance of a rating decision constitutes "new and material" evidence relating to an earlier claim. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). Until such a determination is made, the claim does not become final. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156(b). Here, the Board finds that the evidence the Veteran submitted to be new and material. In this regard, B.L.M.'s aforementioned letter explaining the Veteran's symptoms and functional impairment due to his psychiatric disorder is certainly new because it was not previously associated with the claims file, and material, because it tends to support the Veteran's contention of entitlement to an increased rating. As such, the Board finds that new and material evidence was submitted within a year of the July 2018 rating decision, and it did not become final. Thus, the Board now must determine what the appropriate effect date is. As mentioned above, the Board notes that the Veteran filed a formal claim for an increased rating for his psychiatric disorder in May 2018. See 5/29/2018 VA 21-526EZ. The July 2018 rating decision denied entitlement to an increased rating. Subsequently, in December 2018, within one-year of the prior decision, the Veteran filed another claim for an increased rating for his psychiatric disorder. See 12/19/2018 VA 21-526EZ. A January 2019 rating decision granted an increased rating of 50 percent for the Veteran's psychiatric disorder, effective December 19, 2018. However, the Board finds that an earlier effective date of May 29, 2018, for the grant of the increased rating of 50 percent is warranted as the July 2018 rating decision remained pending. However, the Board finds that an effective date prior to May 29, 2018, is not warranted. The Board notes that the Veteran filed a claim for an increased rating for his service-connected psychiatric disorder in May 2016. See 5/27/2016 VA 21-526EZ. A July 2016 rating decision denied the Veteran's claim for an increased rating. The Veteran was informed of this decision in August 2016. See 8/1/2016 Notification Letter. However, he failed to file a notice of disagreement within one year and new and material evidence was not submitted within a year. Thus, the June 2016 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. After the June 2016 rating decision, there is no indication in the record of any intent to file a claim for an increased rating for his psychiatric disorder until the Veteran filed his current claim, which was found to be received by VA on May 29, 2018. 38 C.F.R. § 3.155. In conclusion, the Board finds that entitlement to an effective date of May 29, 2018, but no earlier, for the grant of an increased rating of 50 percent for the service-connected psychiatric disorder is granted. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. A higher rating for the service-connected psychiatric disorder. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the U.S. Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is competent to report symptoms observable by sense and contemporaneous medical diagnoses, but not competent to diagnose or assess the etiology of complex medical disorders. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must 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: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 44243 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decreases 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the disability is productive of 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 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 work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In the instant case, the record showed that the Veteran was assigned an initial disability rating of 10 percent under 38 C.F.R. § 4.130, DC 9400, effective March 21, 2001, 30 percent, effective January 20, 2009, and 50 percent, effective December 19, 2018. The Veteran contends entitlement to an increased rating for his service-connected psychiatric disorder. Specifically, the Veteran contends that he is entitled to a 100 percent rating. See 2/27/2019 NOD. Additionally, at the Board hearing, the Veteran testified that his disability has worsened since service; he experiences difficulty getting along with people, he gets sidetracked, and his mind is always racing. See 5/4/2021 Hearing Transcript, at pages 3, 4, 5, and 9. The Veteran was afforded a VA psychiatric examination in June 2018. The Veteran's wife stated that he is often irritable. The Veteran reported he experiences sleep disturbance, nightmares, an irritable and anxious mood, panic attacks, and chronic worry or ruminations. The Veteran was diagnosed with general anxiety disorder. He had symptoms, such as anxiety, suspiciousness, weekly panic attacks, and chronic sleep impairment. The objective examination showed that the Veteran was casually dressed and cooperative, and had a good grooming and hygiene, a clear and coherent speech, and an unremarkable psychomotor activity and thought process and content. Additionally, he had a euthymic and appropriate affect, and no signs of distorted thoughts or perceptions, or homicidal and suicidal ideation. Finally, the examiner stated that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 6/25/2018 C&P Examination. The most recent VA examination was performed in January 2019. The Veteran was diagnosed with posttraumatic stress disorder (PTSD). The examiner stated that the Veteran had symptoms, such as re-experiencing traumatic events, nightmares, avoidance, and persistent negative emotions and cognitions. Additionally, he had detachment, loss of interest, anger, hypervigilance, exaggerated startle response, decreased concentration, restlessness, a depressed and anxious mood, and sleep disturbance. Further, he had anxiety, suspiciousness, panic attacks, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, and disturbances of motivation and mood. The objective examination showed that the Veteran was casually dressed, appropriately groomed, engaging, pleasant, and oriented. Additionally, he had good judgment, insight, and eye contact, a normal speech, an intact memory, an unremarkable psychomotor activity, a euthymic affect, and no thought disorder or suicidal or homicidal ideation. However, he also had a slightly impaired concentration, reported being frequently irritable, waking up drenched in sweat, and being angry at a recent incident where his son was bullied. Finally, the examiner stated that the Veteran had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. See 1/18/2019 C&P Examination. In a letter by private treatment provider B.L.M., M.S., he reported that the Veteran experiences extreme mood swings, severe panic attacks, and some impairment in his long-term memory. Additionally, B.L.M. stated that due to his disability, the Veteran experiences difficulty with his ability to socialize and perform any kind of work task, and an inability to process information. See 12/19/2018 Medical Treatment Record Non-Government Facility. Based on the totality of the evidence above, the Board finds that the Veteran's disability most nearly approximates the criteria for a rating of 70 percent. In this regard, the record generally showed that the Veteran had symptoms, such as an anxious mood, re-experiencing traumatic events, nightmares, avoidance, and persistent negative emotions and cognitions. Additionally, he had detachment, loss of interest, anger, hypervigilance, exaggerated startle response, decreased concentration, sleep disturbance, and restlessness. Further, as mentioned above, B.L.M. stated that the Veteran experiences extreme mood swings, severe panic attacks, some impairment in his long-term memory, difficulty with his ability to socialize and perform any kind of work task, and an inability to process information. Moreover, at the Board hearing, the Veteran testified that he has difficulty getting along with people, he gets sidetracked, and his mind is always racing. As such, the Board finds that the frequency and severity of such symptoms most nearly approximate deficiencies in most areas, such as concentration, thinking, or mood. Therefore, a higher 70 percent rating is warranted for the Veteran's service-connected psychiatric disorder for the entire appeal period. While this represents a partial grant of the benefits sought on appeal, the Board recognizes that further disposition of the issue of entitlement to a rating higher than 70 percent for a psychiatric disorder, would, at this point, be premature and that additional evidentiary development is necessary, as outlined below. REASONS FOR REMAND 1. A rating in excess of 70 percent for the Veteran's service-connected psychiatric disorder. After review of the record, a remand is required in this case to ensure that VA's responsibilities under the duty to assist are followed and that the Veteran is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. During the May 2021 Board hearing, the Veteran testified that he currently receives treatment from private providers, Dr. G.O.A., M.D., and B.L.M. See 5/4/2021 Hearing Transcript, at page 6. However, the Board notes that these private records are missing from the Veteran's claims file. As such, the Board finds that on remand, attempts are to be made to obtain the records from Dr. G.O.A. and B.L.M, as such records would likely be pertinent to the Veteran's disability picture. As such, the Board finds that a remand is required to obtain private records from G.O.A. and B.L.M and an examination to determine the current severity of the disability that takes into consideration the entire claims file. 2. A TDIU. As mentioned above, the issue of entitlement to a TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 477. The matter of a TDIU was raised in connection with the Veteran's increased rating claim. See 5/4/2021 Hearing Transcript at pages 3, 7, and 8. As such, the Board finds that the TDIU must be appropriately developed before an adjudication on the merits to ascertain the educational and employment history of the Veteran, to include having the Veteran complete a VA Form 21-8940. These matters are REMANDED for the following actions: 1. Obtain any and all of the Veteran's outstanding records from appropriate repositories. All records and/or responses received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide the records. 2. Ask the Veteran to submit, or provide authorization for VA to obtain, all non-VA treatment records related to his psychiatric disorder, to include private treatment records from Dr. G.O.A. and B.L.M. Document all requests for information as well as responses in the claims file. If the records are unavailable, then notify the Veteran and his representative. 3. After completing directives # 1 and 2, schedule the Veteran for a VA examination to determine the current severity of his psychiatric disorder. The examiner must review the entire claims file, to include a copy of this Remand, in conjunction with the examination. After a review of the claims file, the examiner is also asked to provide a discussion regarding the increase in severity of the Veteran's psychiatric disorder during the claim period (from May 29, 2018). **In doing so, please address the Veteran's testimony that his psychiatric disability has worsened. Additionally, he testified that he experiences difficulty trusting and getting along with family, friends, and people in general. Further, he testified that due to his disability, he gets sidetracked, and his mind is always racing. See 5/4/2021 Hearing Transcript, at pages 3, 4, 5, and 9.** 4. Send an appropriate notice to the Veteran regarding TDIU and complete any necessary development. This should include sending the Veteran an application form (VA Form 21-8940) and advising the Veteran of the necessity of notifying the AOJ of his employment history and his educational background for proper adjudication of this matter. He should be asked to specifically identify by date the period or periods during which he claims individual unemployability due to service-connected disabilities. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.F., 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.