Citation Nr: 21075850 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 20-10 386 DATE: December 21, 2021 ORDER Entitlement to an effective date of October 6, 2017, for the grant of service connection for posttraumatic stress disorder (PTSD) and the assignment of a 70 percent rating is granted. FINDINGS OF FACT 1. The most persuasive evidence of record shows that the Veteran did not have a mental disorder that conformed to the DSM-5 when he filed his claim on August 10, 2016, or when he was examined on September 23, 2016. 2. The Veteran was first diagnosed with a mental disorder on October 6, 2017, and the remaining evidence of record does not show when it first manifested. CONCLUSION OF LAW The criteria for an effective date of October 6, 2017 for the grant of service connection for PTSD and the assignment of 70 percent disability rating for PTSD have been met. 38 U.S.C. §§ 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from November 1961 to October 1970. By way of history, the Veteran filed his initial claim for service connection for PTSD on August 11, 2016. An October 19, 2016 rating decision denied the Veteran's claim for service connection for PTSD. In September 2017, the Veteran submitted a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and DIC (ITF). Within one year, on October 5, 2017, the Veteran filed a petition to reopen his PTSD claim. In December 2017, the RO reopened and denied the Veteran's PTSD claim based on a finding that PTSD had not been clinically diagnosed, and granted service connection for specified trauma and stressor related disorder, effective August 10, 2016. On December 15, 2017, the Veteran submitted an ITF. Within one year of his ITF, he submitted a claim for service connection for PTSD in April 2018. A May 2018 Rating Decision recharacterized the Veteran's other specified trauma related and stressor related disorder as PTSD and assigned a 70 percent rating, effective December 15, 2017, the date the VA received the Veteran's ITF. In October 2021, the Veteran testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In October 2018, the RO was informed by the Social Security Administration that the Veteran's records had been destroyed. 1. Entitlement to an effective date prior to December 15, 2017 for the grant of a 70 percent disability rating for PTSD The Veteran claims entitlement to an effective date prior to December 15, 2017, for the grant of service connection for PTSD. Specifically, he argues that it should be effective August 10, 2016, the date of his first PTSD claim. At his hearing, the Veteran testified that he did not understand the VA claims process did not know if his original PTSD claim from August 2016 was closed, and continued to file claims for PTSD to preserve a "retroactive" effective date. He contends that he has had PTSD since he filed his claim in August 2016. Assuming that August 11, 2016 was the correct date of claim, entitlement did not arise until later. Entitlement to benefits does not arise with a medical diagnosis of a condition, but with the manifestation of the condition and the filing of claim for benefits. McGrath v. Gober, 14 Vet. App. 28, 35 (2000). For the reasons discussed below, the Board grants an effective date of October 6, 2017, but no earlier, for the assignment of the 70 percent rating for PTSD. In December 2017, the RO assigned August 10, 2016, as the date of claim for his other specified trauma and stressor related disorder because it was his date of claim, stating that he "continuously prosecuted the claim." The RO assigned this date erroneously, as a mental disorder conforming to the DSM-5 was not present when he filed his claim. However, the Board will not disturb this finding. The Board explains below that the Veteran did not have a psychiatric disorder that conformed to the DSM-5 when he filed his August 10, 2016 claim for service connection for PTSD, and that the most persuasive evidence of record does not show when his disability manifested prior to October 6, 2017. Except as otherwise provided, the effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose, if a claim is received within one year of separation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Otherwise, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. Id. A September 2016 VA examiner specifically found that the Veteran did not have PTSD or any other mental health disorder. She found that the "Veteran's symptoms do not meet the diagnostic criteria for PTSD." The examiner, who is a clinical psychologist, further explained, The Veteran was deployed to [a] hostile region, Vietnam, and he described experiencing traumatic situations while there. However, with the exception of occasional distress when he recalls a traumatic memory, intermittently impaired sleep, and occasional exaggerated startle, he denied experiencing many other symptoms typically associated with PTSD. Of the symptoms noted, he did not describe an intensity/frequency significant enough to warrant another diagnosis. Lastly, symptoms have not impaired occupational or social functioning. As such, he did not meet criteria for PTSD I[n] A[ccordance] W[ith] DSM 5. To specific questioning, the veteran denied symptoms associated with depression, anxiety, mania, disordered impulse control, and/or psychosis at the current time. This is highly persuasive evidence against a finding that he had a psychiatric disorder under the DSM-5 on September 23, 2016. Additionally, there is no persuasive evidence conflicting with this finding. There was a positive PTSD screen on August 5, 2016, but PTSD or another mental disorder were not diagnosed. The positive PTSD screen is significantly less probative than the well-reasoned findings of the VA examiner. Additionally, the Veteran's VA and private medical treatment records, including prior to his claim on August 10, 2016, are silent for a diagnosis of PTSD or any other mental disorder. The most persuasive evidence is the finding of the September 2016 VA examiner. The Veteran's VA and private medical treatment records are silent for a diagnosis of PTSD or any other mental disorder prior to October 6, 2017. Additionally, the information of record after October 6, 2017, does not show when a mental disorder manifested. The October 6, 2017 record does not state when PTSD or any other mental disorder manifested. Instead, the Veteran reported to his physician to ask for an evaluation "believing he may have PTSD." His physician found that the Veteran "meets the criteria for PTSD" but did not provide any indication as to when it manifested. An October 26, 2017 behavioral health outpatient intake note shows that the Veteran reported psychiatric symptoms and had been experiencing symptoms 10 years ago, but did not conclude that a mental disorder was present at that time. The physician noted that there was "no prior psychiatric history." As explained by the September 23, 2016 examiner, the Veteran was indeed experiencing symptoms, but they did not meet the DSM-5 criteria for any mental disorder diagnosis. The October 26, 2017 note does not provide information sufficient to determine when his symptoms, which did not result in a diagnosis on September 23, 2016, became a diagnosable psychiatric disorder under the DSM-5. His May 2018 VA examination notes a diagnosis of PTSD and no other mental disorder, and states that "[t]he new diagnosis is a progression of the previous diagnosis and meets criteria under DSM-5." However, the information in the May 2018 VA examination report does not show when the psychiatric disorder first manifested. Subsequent VA mental health treatment records address his current symptoms but do not provide information as to when his mental disorder manifested. To receive compensation for a psychiatric disability, there must be a diagnosis that conforms to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). Even if the Veteran was experiencing psychiatric symptoms when he filed his August 2016 claim, on September 23, 2016, a clinical psychologist specifically found that he did not have a mental disorder meeting the DSM-5 criteria. The remainder of the evidence in the claims file does not support a finding that he had a psychiatric disorder at the time of his August 2016 claim. Based on the evidence discussed above, at the time of his August 2016 claim, the current disability requirement of a service connection claim was not met. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Although entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition, if the Veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). It is not possible to determine when the disability first manifested with the available evidence of record. Thus, October 6, 2017 is the appropriate effective date. This date is not being assigned mechanically, instead, the Board has considered whether the other evidence in the claims file shows when the mental disorder manifested, as discussed above. October 6, 2017 is the most favorable effective date. Lay persons are competent to provide opinions on some medical issues. Kahana, 24 Vet. App. at 435. The Veteran is competent to report psychiatric symptoms, and his descriptions are credible. However, determining when he first had PTSD or another mental disorder that conformed to the DSM-5 prior to October 6, 2017 requires medical inquiry into the Veteran's psychiatric functioning. Making this determination falls outside the realm of knowledge of the Veteran in this case. See Jandreau, 492 F.3d at 1377 n.4. It involves the ability to determine when symptoms are sub-clinical and when they are not. It also requires the ability to apply diagnostic criteria to symptoms and knowledge of the different types of psychiatric disorders and how they manifest. This is outside the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. As a result, his opinion is not competent evidence. Moreover, a medical diagnosis of PTSD has long been required to establish service connection. Young v. McDonald, 766 F.3d 1348, 1353-54 (Fed. Cir. 2014) ("PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify"). The Veteran is not competent to self-diagnose PTSD or state when his PTSD first manifested. The most persuasive evidence supports a finding that the Veteran did not have a psychiatric disorder when he filed his claim on August 10, 2016, that he specifically did not have one on September 23, 2016, that he was first diagnosed with one on October 6, 2017, and that the evidence does not show when it first manifested. Accordingly, entitlement to an effective date of October 6, 2017, but not prior, for the grant of a 70 percent disability rating for PTSD is warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.