Citation Nr: 21006072 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 18-52 635 DATE: February 3, 2021 ORDER The July 16, 2019 Board of Veterans’ Appeals (Board) decision denying a disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD), prior to June 22, 2017, is vacated. The July 16, 2019 Board of Veterans’ Appeals (Board) decision granting a disability rating of 100 percent for PTSD, from June 22, 2017, is vacated. The July 16, 2019 Board of Veterans’ Appeals (Board) decision dismissing an earlier effective date claim for PTSD is vacated. An effective date earlier than July 15, 2008 for the grant of service connection for PTSD is denied. From July 15, 2008, entitlement to an initial 100 percent rating for PTSD is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. In a July 2019 Board decision, the Veteran’s claim for an increased rating for PTSD in excess of 50 percent prior to June 22, 2017, was denied, a rating of 100 percent for PTSD was granted from June 22, 2017, and an appeal for an earlier effective date for PTSD was dismissed. 2. In the July 16, 2019 decision, the Board failed to consider the Veteran’s April 15, 2015 Compensation and Pension examination report for PTSD as well as the Veteran’s claim for entitlement to a total disability rating based on individual unemployability (TDIU). 3. A July 2002 rating decision denied service connection for PTSD. On August 7, 2003, more than one year after the July 2002 rating decision, the VA received a Notice of Disagreement (NOD) with the July 2002 rating decision. However, because this NOD was received more than one year after the rating decision, it was untimely. No new and material evidence was received within the appeal period. 4. On July 15, 2008, the Veteran submitted a new claim for service connection for PTSD. In a February 2016 rating decision, the RO granted service connection for PTSD, effective July 15, 2008, the date of the Veteran’s claim to reopen. 5. After the August 2003 untimely NOD, the Veteran made no submission to VA prior to July 15, 2008, which may be construed as a formal or informal claim for service connection for PTSD. No such submission demonstrated an intent to apply for benefits for service connection for PTSD prior to July 15, 2008. 6. Affording the Veteran the benefit of the doubt, from July 15, 2008, the Veteran’s PTSD has more nearly been characterized as total occupational and social impairment. CONCLUSIONS OF LAW 1. The July 16, 2019 Board decision, denying a rating in excess of 50 percent for PTSD prior to June 22, 2017, is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. The July 16, 2019 Board decision granting a 100 percent rating for PTSD from June 22, 2017, is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 3. The July 16, 2019 Board decision dismissing an appeal for an earlier effective date for PTSD is vacated. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 4. The July 2002 rating decision that denied service connection for PTSD is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 5. The criteria have not been met for an effective date earlier than July 15, 2008 for the grant of service connection for PTSD. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 6. Affording the Veteran the benefit of the doubt, from July 15, 2008, the criteria have been met for a disability rating of 100 percent for PTSD. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411, General Rating Formula for Mental Disorders. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1988 to May 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). In February 2019 rating decision, the Veteran’s service-connected PTSD was increased from 50 percent to 100 percent, effective November 28, 2018. As this does not constitute a full grants, this issue remains on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). In a July 16, 2019 decision, the Board granted service connection for obstructive sleep apnea, denied a disability rating in excess of 50 percent for PTSD prior to June 22, 2017, granted a disability rating of 100 percent for PTSD from June 22, 2017, and dismissed an appeal for an earlier effective date for PTSD. As will be discussed below, the Board is vacating the increased rating claims for the Veteran’s PTSD and the dismissal of the earlier effective date claim for PTSD. However, the grant of service connection for sleep apnea is NOT being vacated. Vacatur 1. The July 16, 2019 Board decision, denying a rating in excess of 50 percent for PTSD prior to June 22, 2017, is vacated. 2. The July 16, 2019 Board decision granting a 100 percent rating for PTSD from June 22, 2017, is vacated. 3. The July 16, 2019 Board decision dismissing an appeal for an earlier effective date for PTSD is vacated. As there is considerable overlap in the applicable evidence for the Veteran’s claims, the Board will discuss them together. On July 16, 2019, the Board denied a rating in excess of 50 percent for PTSD, granted a rating of 100 percent for PTSD, and dismissed an appeal for an earlier effective date for PTSD. The Board also granted service connection for sleep apnea. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. In this case, the Board is vacating the July 16, 2019 decision denying and granting staged ratings for PTSD and an earlier effective date for PTSD. The Board is NOT vacating the issue granting service connection for sleep apnea. On November 8, 2019, the Board received a request for reconsideration of the July 16, 2019 decision pursuant to 38 C.F.R. § 20.1001 and 20.1002. In the July 16, 2019 decision, the Board failed to consider the Veteran’s April 15, 2015 Compensation and Pension examination report for PTSD. Accordingly, the Board finds that the Veteran was denied due process of law when the Board issued decisions and the July 16, 2019 increased rating claims and earlier effective date claim must be vacated. See 38 C.F.R. § 20.1000(a). Earlier Effective Dates Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An effective date earlier than July 15, 2008 for the grant of service connection for PTSD is denied. In this case, the Veteran seeks an effective date earlier than July 15, 2008 for the grant of service connection for PTSD. Originally, in February 2001, the Veteran applied for service connection for PTSD. A July 2002 rating decision denied service connection. As discussed above, while the Veteran submitted an NOD to the July 2002, rating decision, the NOD was not received until August 2003, more than one year after the decision. Because of this, and because new and material evidence was not received within the appeal period, the July 2002 rating decision became final. 38 U.S.C. § 7105. After the August 2003 untimely NOD, the Veteran made no submission to VA prior to July 15, 2008 which may be construed as a formal or informal claim for service connection for PTSD. No such submission demonstrated an intent to apply for benefits for service connection for PTSD prior to July 15, 2008. In July 2008, the Veteran filed a claim to reopen the issue of service connection for PTSD. In a February 2016 rating decision, service connection was finally granted with an effective date of July 15, 2008, the date of the Veteran’s claim to reopen. While the Veteran and his attorney have stated that the effective date for PTSD should go back to his original February 2001 claim, that is not possible. The Veteran was denied service connection for PTSD in the July 2002 rating decision and there was no timely NOD or new and material evidence received. Because of this, the July 2002 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. It is not legally possible for the grant of service connection to be any earlier than the current effective date of July 15, 2008. According to 38 C.F.R. § 3.400, the effective date of an award of compensation based on an original claim, “will be the date of receipt of the claim or the date entitlement arose, whichever is the later” (emphasis added). Because the July 2002 rating decision became final, and the Veteran did not file a claim to reopen until July 15, 2008, the effective date is the date of the Veteran’s claim to reopen, July 15, 2008. Id. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. From July 15, 2008, entitlement to an initial 100 percent rating for PTSD is granted. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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-term 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. See 38 C.F.R. § 4.130, DC 9411, General Rating Formula for Mental Disorders. 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 affection 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. Id. The maximum 100 percent rating is warranted 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 person hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Factual Background The Board notes that prior to the now-vacated July 16, 2019 Board decision, the Veteran’s service-connected PTSD was staged. From July 15, 2008, it was rated 50 percent. From November 28, 2018, it was rated 100 percent. The Veteran’s PTSD is rated under DC 9411. 38 C.F.R. § 4.130, DC 9411, General Rating Formula for Mental Disorders. In an April 2015 VA examination report, the Veteran was diagnosed with PTSD. The examiner characterized the Veteran’s PTSD as causing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. However, the Board notes that this characterization seems to be contradictory with the severity of the Veteran’s PTSD symptoms. According to the VA examiner, the Veteran had symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. In an April 2017 letter, the Veteran’s sister wrote that he was socially isolated and withdrawn even from his family. She wrote that he “constantly fidgets and can’t stay seated.” The Veterans sister noted that he had trouble focusing and was physically abusive in the past, unable to control his tempter or his suicidal thoughts. In an August 2017 letter, the Veteran’s spouse wrote that he “snaps at any little thing; yells a lot; thinks he’s right; [had a] short tempter, and explodes in a rage.” She also noted that he had anxiety, yelled and cursed, and “blows up on family.” The Veteran’s spouse wrote that he was anxious all the time, could not sit still, forgets his doctor’s appointments, does not get much sleep, had nightmares, and was tired all day. She noted that he experienced weight gain, isolated himself from friends and family, and could not get along with others. The Veteran was argumentative and quit multiple jobs when he was asked to do something he did not want to. He had also been fired from multiple jobs for the same reason. In a September 2018 private PTSD assessment, the Veteran’s private examiner noted that the Veteran was originally interviewed in June 2017. The examiner reported that the Veteran had been married for 24 years and had one son. The Veteran stated that he kept his struggles to himself, “not wanting to burden others.” The private examiner reported that the Veteran was socially isolated and withdrawn and had assistance performing some of his daily living tasks. The Veteran’s spouse performed the food shopping, meal preparations, maintained the household chores, managed their finances, and sometimes had to remind the Veteran to bathe. The private physician wrote that in their expert opinion, the severity of the Veteran’s symptom-complex related back to his original claim date of July 15, 2008. The Veteran reported passive suicidal ideation, auditory hallucinations consisting of hearing voices, chronic sleep impairment, including broken sleep and nightmares. The Veteran described disturbances of motivation and mood, sense of foreshortened future, exaggerated startle response, hypervigilance, mild memory loss, and impairment of short and long-term memory. He also noted difficulty concentrating, irritability, difficulty establishing and maintaining relationships, and difficulty adapting to stressful circumstances, including work. The Veteran reported psychological and physiological reactions to helicopters and loud noises because of their resemblance to his traumatic military experience. The private examiner reported that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his PTSD. The Veteran described not getting enough restful sleep and feeling fatigued nearly every day. He reported difficulty remembering events, requests, and occasionally forgetting details or sequencing that would affect his employment and daily living. The Veteran had difficulty maintaining and sustaining a steady mood and this inconsistent mood led to problems in his social and work life. He noted that he had trust issues and had difficulty letting others into his life. The Veteran remarked that he felt nervous and worried and struggled with ongoing anxiety issues. With his poor interpersonal skills and workplace trust issues, the private examiner noted that the Veteran would have an increase in his paranoia and would struggle with appropriate work interaction. The Veteran had physical signs of depression that interfered in daily work and living, including extreme fatigue, hypersomnia, appetite issues, weight fluctuations, and emotional outbursts. Additionally, the Veteran reported suicidal ideation. The Private examiner concluded by reporting that the Veteran struggled with depressed mood, hypervigilance, and disturbances of motivation and mood. Additionally, he had difficulty maintaining effective relationships and had severe impairment. The private examiner opined that the Veteran’s symptoms “have been in existence since [his] return from military service and have continued through the date of filing for benefits. His deterioration continues to present date.” In a November 2018 VA examination report, the Veteran was diagnosed with PTSD. The Veteran’s PTSD symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affective the ability to function independently, appropriately, or effectively, chronic sleep impairment, mild memory moss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, persistent danger of hurting self or others, and neglect of personal appearance and hygiene. The VA examiner opined that the “current continuation and progression of the Veteran’s symptom patterns with increased impairment in occupational and social function is more likely than not greater than 50 percent due to exacerbation of his PTSD.” The Board notes that throughout the appeal period, the Veteran received medical treatment for his PTSD. These treatment reports did not evaluate the nature, extent, and severity of his PTSD. While not discussed specifically, the Board has reviewed them and taken them into consideration. Based on the above analysis, and affording the Veteran the benefit of the doubt, the Board determines that from July 15, 2018, the date of his claim to reopen, the Veteran’s PTSD more nearly approximates a 100 percent disability rating. The Veteran and his family are competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, the Board finds them credible as well. Id. Their statements, the September 2018 letter from the Veteran’s psychologist, and the April 2015 and November 2018 VA examination reports, lead the board to conclude that it is at least as likely as not that the Veteran’s PTSD more nearly approximates total occupational and social impairment since July 15, 2008. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board acknowledges that in the Veteran’s November 2019 Motion for Reconsideration, his attorney noted that the issue of entitlement to a TDIU had been raised but not addressed in the July 16, 2019 decision. Under 38 C.F.R. § 4.16(a), total disability ratings for compensation may be assigned where the schedular rating is less than total (emphasis added). The Board finds that the issue of entitlement to a TDIU is not before the Board because the Veteran’s service-connected PTSD has been granted a 100 percent rating back to the date of his claim. Additionally, the Board finds that the Veteran has not raised the issue of entitlement to special monthly compensation (SMC). To establish entitlement to SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l), the evidence must show that the Veteran experienced the anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as a result of service-connected disability that he or she is in need of the regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). To establish entitlement to SMC based on housebound status under 38 U.S.C. § 1114(s), the evidence must show that the Veteran has a single service-connected disability evaluated as 100 percent disabling and an additional service-connected disability, or disabilities, evaluated as 60 percent or more disabling that is separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, the Veteran has a single service-connected disability evaluated as 100 percent disabling and due solely to service-connected disability or disabilities, the Veteran is permanently and substantially confined to his or her immediate premises. 38 C.F.R. § 3.350(i). (Continued on next page)  Currently, the Veteran’s is service connected for PTSD, evaluated as 100 percent disabling and for obstructive sleep apnea, evaluated as 50 percent disabling. If the Veteran’s service-connected disabilities should worsen in the future, or if he is granted service connection for other disabilities, he is free to file a claim for SMC at that time. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Abrams, 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.