Citation Nr: 21006497 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-33 987 DATE: February 4, 2021 ORDER Entitlement to an effective date earlier than June 8, 2011, for the award of a 70 percent rating for posttraumatic stress disorder (PTSD) with depressive disorder is denied. FINDINGS OF FACT 1. In a May 31, 2011 decision, the Board denied an initial evaluation of 70 percent for PTSD from April 23, 2004 to the time of the Board decision. This decision was subsequently affirmed by the United States Court of Appeals for Veterans Claims in a September 2012 Memorandum Decision. 2. No communication was received from the Veteran between the issuance of the May 2011 decision and June 8, 2011, that may reasonably be construed as a claim for an increased rating for PTSD with depressive disorder. 3. It was not factually ascertainable that the Veteran’s service-connected PTSD with depressive disorder was manifested by occupational and social impairment, with deficiencies in most areas during the one-year period prior to the June 8, 2011 claim for an increased rating. CONCLUSIONS OF LAW 1. The May 2011 Board decision is final. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.202, 20.1103. 2. The criteria for entitlement to an effective date earlier than June 8, 2011, for the assignment of a 70 percent rating for PTSD with depressive disorder, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1967 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board denied entitlement to an effective date prior to June 8, 2011 for the award of a 70 percent rating for PTSD with depressive disorder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court), and the Court granted an August 2020 Joint Motion for Remand (JMR), vacated the August 2019 Board decision and remanded the issue to the Board for readjudication. The parties to the August 2020 JMR agreed that remand was necessary so that the Board may discuss the expressly and reasonably raised issue of whether the Veteran was entitled to Special Monthly Compensation (SMC). In a January 2021 decision, the Board granted entitlement to SMC at the housebound rate under the provisions of 38 U.S.C. § 1114 (s) under the Appeals Modernization ACT of 2017 (AMA) since the Veteran already filed an AMA appeal related to the issue of entitlement to an SMC. In a January 2021 rating decision, the RO granted an effective date from December 1, 2006 for the grant of entitlement to SMC. As such, the issue of entitlement to SMC is no longer before the Board. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues decided herein. 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). Effective Date The effective date of a rating and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 C.F.R. § 5110 (b) (2); 38 C.F.R. § 3.400 (o) (2). For this purpose, the evidence must show that the increase in disability was sufficient to warrant a higher rating under the rating criteria. Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining the proper date for an increased rating requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record for the one year prior to the date of the claim to determine when an increase in disability was “factually ascertainable” in terms of meeting or approximating the criteria for a higher rating. See id. at 521. 38 U.S.C. § 5110 (b) (2) and 38 C.F.R. § 3.400 (o) (2) are applicable only where the increase precedes the claim, provided that the claim is received within one year after the increase. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The phrase “otherwise, date of receipt of claim” provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. Id.; see also VAOPGCPREC 12-98 at 2. In determining when an increase is “factually ascertainable,” VA should look to the record as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. VAOPGCPREC 12-98 at 5. Prior to March 24, 2015, a “claim” was defined as a “formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.” 38 C.F.R. § 3.1 (p) (2014). An informal claim included “[a]ny communication or action, indicating an intent to apply for one or more benefits...” 38 C.F.R. § 3.155 (a) (2014). Claims filed on or after March 24, 2015, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1 (p). The Board will apply the regulations in effect prior to March 24, 2015, to all correspondence received from the Veteran prior to that date. Entitlement to an effective date earlier than June 8, 2011 for the assignment of a 70 percent rating for PTSD with depressive disorder The Veteran seeks entitlement to an effective date earlier than June 8, 2011, for the assignment of a 70 percent rating for PTSD with depressive disorder. In a July 2019 appellate brief, the Veteran’s representative stated that the 70 percent rating should be granted from April 23, 2004, the date the Veteran originally filed his claim for entitlement to PTSD. The Veteran first made an informal claim for service connection for PTSD in a statement received on April 23, 2004. Service connection for PTSD was initially granted by the RO in a March 2005 rating decision with a 30 percent evaluation, effective April 23, 2004. On September 12, 2005, the Veteran filed a claim for an increased rating for PTSD. In a September 2006 rating decision, the RO granted an increased 50 percent rating for PTSD, effective September 12, 2005. That same month, the Veteran filed a notice of disagreement with the September 2006 rating decision, specifically disagreeing with the effective date and the 50 percent rating. A Statement of the Case (SOC) was issued in March 2007 and June 2007. The Veteran filed a substantive appeal in June 2007. In May 2011, the Board issued a decision that granted an initial disability rating of 50 percent for PTSD throughout the appeal period and denied an initial rating of 70 percent throughout the appeal period. The Veteran appealed the Board’s May 2011 decision to the Court. In a September 2012 Memorandum Decision, the Court affirmed the Board’s May 2011 decision. Thus, the determination that the Veteran’s psychiatric disorder did not warrant an initial rating of 70 percent from April 2004 is final regarding the initial evaluation of the Veteran’s PTSD and the evidence considered at that time. 38 U.S.C. §§ 7104 (b), 7252; 38 C.F.R. §§ 20.1100. A July 8, 2011 rating decision implemented the Board’s decision, increasing the PTSD rating to 50 percent, effective April 23, 2004. On June 8, 2011, the Veteran submitted an informal claim for service connection for depression, which was denied in a December 2012 rating decision. In a May 2016 rating decision, the RO found that the denial of service connection for depressive disorder NOS constituted clear and unmistakable error. Specifically, the RO noted that December 2010 and November 2011 VA examinations and private medical records found depressive disorder NOS to be due to the Veteran’s service-connected PTSD. The RO concluded that service connection for depressive disorder NOS was established, and that it would be evaluated together with service-connected PTSD based upon the total disability picture. A 70 percent rating for PTSD with depressive disorder NOS was granted effective June 8, 2011, the date of the Veteran’s informal claim for service connection for depression was received. As noted above, the Veteran believes that the 70 percent rating should be effective April 23, 2004, the date entitlement to service connection for PTSD was granted. Following issuance of the May 2011 Board decision, the earliest dated communication from the Veteran that constitutes a formal or informal claim for entitlement to an increased rating for the service-connected PTSD is the June 8, 2011 claim for entitlement to service connection for depression. Specifically, although VA received communications from the Veteran between issuance of the May 2011 Board decision and June 8, 2011, none of those communications may reasonably be construed as requesting a determination of entitlement or evidencing a belief in entitlement to an increased rating for the service-connected PTSD. Therefore, the Board concludes that no communication was received from the Veteran between issuance of the May 2011 Board decision and June 8, 2011, that may reasonably be construed as a claim for an increased rating for the service-connected PTSD with depressive disorder. As such, the earliest date on which an effective date may be established is June 9, 2010, one year prior to receipt of the claim. As discussed above, for a higher rating to be granted during the one-year period prior to the claim, it must be factually ascertainable that an increase in disability had occurred. See 38 C.F.R. § 3.400 (o) (2). For the one-year period prior to June 8, 2011 the Veteran’s PTSD is rated as 50 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders (General Formula). When rating disabilities under the 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). In relevant part, under the General Formula, 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 when symptoms such 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 cause total occupational and social impairment. The issue in this appeal is whether it is factually ascertainable that an increase in disability had occurred such that the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher prior to June 8, 2011. The Board concludes that it is not factually ascertainable that an increase in disability had occurred in the one-year period prior to June 8, 2011, since the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. The Veteran’s treatment records; December 2010 VA examination; and lay statements show that his PTSD with depressive disorder was manifested by symptoms associated with a 50 percent rating of impaired abstract thinking, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. It was also manifested by irritability or outbursts of anger, which is a symptom associated with a 70 percent rating. He also had chronic sleep impairment with nightmares, which are symptoms associated with a 30 percent rating. He additionally had symptoms that are not listed with a specific rating, such as feelings of difficulty concentrating, hypervigilance, and exaggerated startle response. The Board finds that the severity, frequency, and duration of the Veteran’s unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The unlisted symptoms are similar to impaired judgment, impaired abstract thinking, and disturbances of motivation and mood which are symptoms listed under the 50 percent rating criteria, and to suspiciousness, which is a symptom listed under the 30 percent rating criteria. Although the Veteran did experience at least one symptom contemplated by a 70 percent rating, irritability or outbursts of anger, the evidence does not demonstrate an overall level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a rating of 50 percent or lower. The Board therefore finds that the criteria for entitlement to an effective date earlier than June 8, 2011, for the assignment of a 70 percent rating for PTSD with depressive disorder, have not been met. The preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. G. LeMoine, 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.