Citation Nr: A21020549 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210914-184720 DATE: December 27, 2021 ORDER An effective date prior to August 10, 2017, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. For the entire initial rating period on appeal, from August 10, 2017, a higher initial disability rating of 70 percent, but no higher, for service-connected PTSD is granted. FINDINGS OF FACT 1. No claim, formal or informal, for service connection for a mental health disorder was received prior to March 24, 2015. 2. The Department of Veterans Affairs (VA) received the Veteran's VA Form 21 526EZ, Application for Disability Compensation and Related Compensation Benefits, on August 10, 2017. 3. A VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits, or Survivors Pension and/or DIC, was not received prior to the receipt of the August 10, 2017 VA Form 21-526EZ. 4. During the entire initial rating period on appeal, from August 10, 2017, the severity, frequency, and duration of the symptoms of the service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. As a matter of law, the criteria for an effective date prior to August 10, 2017 for service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. Resolving reasonable doubt in the Veteran's favor, from August 10, 2017, the criteria for a higher initial disability rating of 70 percent, but no higher, for the service connected PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from August 1968 to April 1972. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans who disagree with VA's decision on their claim. By way of history, in a recent September 26, 2020 Remand, the Board of Veterans' Appeals (Board) remanded the issues of service connection for an acquired psychiatric disorder and entitlement to a total disability rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU). In August 2021, the Agency of Original Jurisdiction (AOJ) issued a rating decision granting service connection for PTSD, with an initial 50 percent disability rating, effective August 10, 2017. Further, in a subsequent November 2021 supplemental statement of the case (SSOC), the AOJ continued the denial of a TDIU. As VA has not received a VA Form 10182, Notice of Disagreement (NOD), opting the TDIU issue into the AMA system, the issue of entitlement to a TDIU remains in the Legacy system and will be addressed in a future Legacy Board decision. Following the issuance of the August 2021 rating decision granting service connection for PTSD, the Veteran submitted a VA Form 10182 disagreeing with both the effective date and initial rating of the PTSD. Per the VA Form 10182, the Veteran requested direct review by the Board. Direct review is the appeal option to the Board in which a Board decision is issued based on evidence of record at the time of the prior decision. The Board cannot hold a hearing or accept into the record additional evidence in its direct review. 1. An Earlier Effective Date for PTSD is Denied. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Title 38 of the Code of Federal Regulations clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). As to what constitutes a claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" means a communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). To preserve an effective date, an intent to file a claim may be submitted to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, appropriate to the benefit sought within one-year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155. An intent to file a claim may be submitted in one of three ways, via saved electronic application, via written notice on a prescribed intent to file claim form, or via oral communication with designated VA personnel, who records the intent in writing. Under the former regulations governing informal claims, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155 (2014). Reports of examination or hospitalization from VA, private physicians, or state or other institutions, may be accepted in certain circumstances as claims for increase or claims to reopen. 38 C.F.R. § 3.157(a) (2014). Significantly, receipt of such reports of examination or hospitalization may only be accepted as an informal claim for increased benefits if a formal claim for compensation has been previously allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree. 38 C.F.R. § 3.157(b) (2014). With respect to evidence from a private physician or layman in particular, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim when the evidence furnished by or on behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2014). In the September 2021 NOD, the Veteran disagreed with the effective date assigned for the grant of service connection for PTSD. No argument has been presented as to why an earlier effective date is warranted. For the reasons discussed below, the Board finds that an effective date prior to August 10, 2017 is not warranted. Review of the record reflects that no claim, formal or informal, for service connection for a mental health disorder was received prior to March 24, 2015. As such, the Board is only concerned with whether the Veteran filed a claim (or intent to file a claim) in compliance with 38 C.F.R. § 3.155 as it was in effect following the March 24, 2015 regulation amendments. Again, following the March 24, 2015 amendments, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. On February 1, 2016, many years following the Veteran's separation from service, VA received a letter from the Veteran asking for information about how to apply for VA compensation benefits. Such a letter does not constitute a claim or intent to file under the March 24, 2015 amendments to 38 C.F.R. § 3.155. Subsequently, on February 22, 2016, VA sent the Veteran a letter noting that it appeared that the Veteran would like to apply for VA compensation benefits. Relevant to the instant matter, the letter informed the Veteran that a claim could be filed via VA Form 21 526EZ, Application for Disability Compensation and Related Compensation Benefits, or that an intent to file could be submitted at that time. The Veteran was informed that an intent to file could be filed online, via a telephone conversation with VA, or by filing a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits, or Survivors Pension and/or DIC. On April 12, 2017, more than one year following the February 1, 2016 letter, VA received a VA Form 21-4138, Statement in Support of Claim, from the Veteran indicating that a private medical examination was being mailed to support the grant of service connection benefits. As this filing was completed on a VA Form 21 4138, rather than a VA Form 21-526EZ or VA Form 21-0966, this did not constitute a filing for benefits, or intent to file, under 38 C.F.R. § 3.155 as amended in March 2015. On July 20, 2017, VA received another VA Form 21-4138, Statement in Support of Claim, in which the Veteran wrote that the April 12, 2017 filing was a claim for service connection benefits. Again, this was not an adequate claim for benefits or intent to file pursuant to 38 C.F.R. § 3.155, as amended. Upon receiving the July 2017 mailing, on August 4, 2017, VA again mailed the Veteran a letter informing about how to properly file a claim for service connection benefits and/or submitting an intent to file for such benefits. Subsequently, on August 10, 2017, VA received the Veteran's claim for service connection for an acquired psychiatric disorder on a properly completed VA Form 21 526EZ. In sum, VA received the Veteran's VA Form 21 526EZ, Application for Disability Compensation and Related Compensation Benefits, requesting service connection for an acquired psychiatric disorder on August 10, 2017. This claim was received many years following the Veteran's separation from service. Review of the record reflects that no claim, formal or informal, for service connection for an acquired psychiatric disorder was received prior to March 24, 2015. While various mailings were received by the Veteran in February 2016, April 2017, and July 2017 indicating a desire to apply for VA compensation benefits, none of these filings were made on a VA Form 21 526EZ, Application for Disability Compensation and Related Compensation Benefits, or VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension Benefits, or Survivors Pension and/or DIC, as required by 38 C.F.R. § 3.155 following the March 2015 regulation amendments. On these facts, the earliest effective date legally possible has been assigned under 38 C.F.R. § 3.400, the date of receipt of claim for service connection for an acquired psychiatric disorder on a properly completed VA Form 21 526EZ, Application for Disability Compensation and Related Compensation Benefits. As an effective date for service connection earlier than August 10, 2017 (date of receipt of VA Form 21-526EZ for service connection for an acquired psychiatric disorder) is not provided by law or regulation, the appeal for an earlier effective date as to the issue of service connection for PTSD is without legal merit, so must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). For these reasons, an effective date prior to August 10, 2017 for the award of service connection for PTSD is denied. 2. An Initial Disability Rating of 70 Percent for PTSD is Granted. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. The Veteran had appealed from the initial rating assigned for the service connected PTSD. In Fenderson v. West, 12 Vet. App. 119, 125 26 (1999), the United States Court of Appeals for Veterans' Claims (Court) addressed a similar appeal and directed that such appeal of the initial rating assigned following a grant of service connection was specifically not a claim for an increased disability rating. The Court also directed that separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Under Diagnostic Code 9411, a 50 percent rating will be assigned for a mental disability which is productive of occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating will be assigned for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating will be assigned for total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet. App. 128 (1997). See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). The evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to 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's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." See also Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (indicating that the Board should consider the severity, frequency, and duration of the signs and symptoms of a mental disorder when determining the appropriate rating). Having reviewed the evidence of record, lay and medical, the Board finds that, from August 10, 2017, the severity, frequency, and duration of the symptoms of the service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, to warrant the grant of an initial disability rating of 70 percent. During the course of this appeal, the Veteran submitted a report from a March 2017 private medical examination. Per the private examination report, the private examinator noted a number of mental health symptoms related to the service connected PTSD. Relevant to the instant matter, the private examiner diagnosed symptoms of difficulty in adapting to stressful circumstances and an inability to establish and maintain effective relationships, both of which are contemplated by the 70 percent rating criteria. The Veteran received a VA mental health examination in August 2021. While the VA examiner did not diagnose the Veteran with an inability to establish and maintain effective relationships, the VA examiner did diagnose difficulty establishing and maintaining effective work and social relationships. In other words, the VA and private examiners differed in their view of the severity, frequency, and/or duration of the PTSD's impact on the Veteran's social relationships. As there is no other adequate evidence of record on this question, the Board will resolve reasonable doubt in favor of the Veteran to find that the PTSD symptoms more nearly approximated an inability to establish and maintain effective relationships. Further, in discussing the PTSD diagnostic criteria, the VA examiner in August 2021 specifically noted that the PTSD manifested as irritable behavior and angry outbursts, with little or no provocation, typically expressed as verbal or physical aggression toward people or objects. The Board notes that such behavior is like or similar to impaired impulse control, such as unprovoked irritability with periods of violence, as contemplated by the 70 percent VA rating criteria. The record does not reflect any other VA or private treatment records that discuss the PTSD symptoms. While the Veteran did receive a VA PTSD examination in December 2017, such examination was found inadequate during the course of the Veteran's appeal for service connection for PTSD; therefore, the Board will not rely on this VA examination as to its findings concerning the severity of the Veteran's mental health symptoms. After a review of all the evidence, lay and medical, the Board finds that, from August 10, 2017, the severity, frequency, and duration of the symptoms of the service-connected PTSD more nearly approximated occupational and social impairment with deficiencies in most areas, as required for a disability rating of 70 percent under Diagnostic Code 9411. As discussed above, the per the reports from the March 2017 private medical evaluation and the August 2021 VA mental health examination, the Veteran's PTSD symptoms manifested as difficulty in adapting to stressful circumstances, an inability to establish and maintain effective relationships, and impaired impulse control, which are specifically contemplated by the 70 percent VA rating criteria. For these reasons, resolving all reasonable doubt in favor of the Veteran, the Board finds that the lay and medical evidence shows that a higher initial disability rating of 70 percent is warranted for the service connected PTSD for the entire initial rating period from August 10, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9411. The Board has also considered whether a 100 percent total disability rating was warranted at any point during the initial rating period on appeal. Having reviewed the evidence of record, lay and medical, the Board finds that, for the initial rating period on appeal from August 10, 2017, the severity, frequency, and duration of the symptoms of the service connected PTSD did not manifest as total occupational and social impairment. Review of the March 2017 private medical evaluation and the August 2021 VA mental health examination reflects that neither the private examiner nor the VA examiner diagnosed the Veteran with any symptoms commonly associated with the 100 percent VA mental health rating criteria. Per the report from the December 2017 VA mental health examination, the Veteran conveyed being in a consensual relationship since 2003, and being the father to two grown children. The Veteran stated that the relationships with the children and romantic partner were "good." In the subsequent August 2021 VA mental health examination, it was reported that the Veteran had continuously lived with the romantic partner for the past 18 years. Nothing indicated that the Veteran's relationships with the children and/or romantic partner was no longer "good." Review of the evidence of record reflects that, for the entire initial rating period from August 10, 2017, the Veteran was able to maintain a relationship with two children and a romantic partner of 18 years. As such, it cannot be said that, during the initial rating period from August 10, 2017, the Veteran's social impairment was total, as required for a 100 percent disability rating under Diagnostic Code 9411. Further, nothing in the record supports that the Veteran has ever been diagnosed with any symptoms commonly associated with the 100 percent rating criteria, or that any of the diagnosed symptoms were of such severity, frequency, and/or duration to be comparable to the symptoms contemplated by the 100 percent rating criteria. For these reasons, the Board finds that a total 100 percent disability rating is not warranted at any point during the initial rating period from August 10, 2017. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Claim Not Raised The Board finds that neither the Veteran nor the record has raised a claim for extraschedular rating under 38 C.F.R. § 3.321(b) for any period for the initial rating issue on appeal. See Thun v. Peake, 22 Vet. App. 111 (2008); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record); Yancy v. McDonald, 27 Vet. App. 484, 494 (2016), citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007) (holding that when 38 C.F.R. § 3.321(b)(1) is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board, the Board is not required to discuss whether referral is warranted"). Further, as discussed in the introduction, the issue of entitlement to a TDIU will be addressed in a future Board Legacy decision. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Blowers, 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.