Citation Nr: 21010891 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-03 246 DATE: February 26, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to January 28, 2014 for the grant of service connection for PTSD is denied. FINDINGS OF FACT 1. At worst, the Veteran’s PTSD does not manifest as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. 2. The RO received the Veteran’s VA 21-526EZ (Fully Developed Claim (Compensation)) for PTSD on January 28, 2015. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for entitlement to an effective date prior to January 28, 2014 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.156(c); 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Navy from September 1963 to September 1966. These matters come before the Board of Veteran’s Appeals (Board) on appeal of an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. Competent Evidence Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). The Board may consider many factors when assessing the credibility and weight of lay evidence, including statements made during treatment, self-interest or bias, internal consistency, and consistency with other evidence. Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Increased Initial Disability Rating: PTSD The Veteran contends that the initial 50 percent disability rating assigned to service-connected PTSD does not contemplate the severity of her symptoms. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Codes 9201 - 9440. Pertinent to this appeal, the General Rating Formula for Mental Disorders rates PTSD: A 50 percent disability rating is assigned when there is 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 abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned when there is 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 that is 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); and inability to establish and maintain effective relationships. And, a 100 percent disability rating is assigned when there is 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 personal hygiene); disorientation to time or place; and memory loss for names of close relatives, for the veteran’s own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part “holistic” analysis. The first step of the analysis is to assess the “severity, frequency, and duration of the signs and symptoms” of the Veteran’s condition. The second step is to quantify “the level of occupational and social impairment caused by those signs and symptoms.” The third step is to assign an “evaluation that most closely approximates that level of occupational and social impairment.” See also Mauerhan, supra. (holding that the list of symptoms in the disability rating schedule for psychiatric disabilities is not exhaustive); Vazquez-Claudio, supra. (holding that the disability rating schedule for psychiatric disabilities reflects “objectively-observable symptomatology,” and “it is the severity of the effects of the symptoms as described by the examiner that determines the rating.”). As all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio, supra. Evidence and Analysis Service personnel records show that the Veteran served as a junior Navy hospital corpsman. In a private medical treatment record dated in January 1997, a clinician noted that the Veteran completed training and worked as a registered nurse until September 1994 after sustaining physical injuries in motor vehicle accidents. In a January 2015 lay statement, the Veteran wrote that during “corps school” (referring to her training as a Navy hospital corpsman from May to September 1964) her company commander singled her out to be his sexual partner; the commander informed the Veteran that she had to do everything he desired sexually. The Veteran endured rape for a prolonged duration. As a consequence of this sexual misconduct, the Veteran has felt dirty; shamed; and distrustful of men for many years. On August 3, 2015, the Veteran was afforded a VA PTSD examination. A clinician reviewed the Veteran’s claims file; considered the Veteran’s accounts of her medical history; and conducted an appropriate evaluation. The clinician provided current diagnoses of PTSD and major depressive disorder, recurrent, moderate. However, the clinician indicated that it was not possible to differentiate the symptoms attributed to each respective diagnosis. The clinician indicated that the Veteran’s level of occupational and social impairment is best summarized as 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. The clinician noted the Veteran’s reports of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or work-like setting. The Veteran reported difficulty with intimacy with men, having married three times with a current stable marriage but no intimacy. She reported close relationships with her children and grandchildren. The Veteran reported enjoying her work as a registered nurse As to behavioral observations, the clinician noted that the Veteran was timely and appropriately groomed. Psychomotor agitation was present; mood was anxious; affect was congruent. The Veteran cried when she described her traumas. While the Veteran’s speech was with normal limits (rate, tone, and volume), the Veteran’s eye contact was intermittent. The clinician also noted that the Veteran completed the Saint Louis University Mental Status Examination (SLUMS) and scored 27 out of 30, which is in the normal range for individuals with a minimum of a high school education. In her September 2015 notice of disagreement (NOD), the Veteran contended that she should be granted an earlier effective date for service connection (as evaluated below). Further, the Veteran wrote that her sexual abuser took “100 percent of her virginity” that she can never get back. A review of the Veteran’s 2015 VA progress notes discloses that she was afforded social work consultations and risk assessment screening. November 2015 alcohol and depression screens were negative. The Veteran reported that she was struggling with financial hardships at this time. Other VA Clinicians reported that prolonged PSTD was an on-going problem. These records also reveal that the Veteran was prescribed medications, to include an anxiolytic and a selective serotonin/norepinephrine reuptake inhibitor (SNRI). In her January 2016 substantive appeal (VA Form 9), the Veteran expressed that she was only a 19-year-old virgin when she was abused by her commander. She also reported that she has suffered from poor sleeping and dreams of “being grabbed and hurt” for many years. Her anxiety was so bad at times that she could not function. Also, the Veteran endorsed depression and a subjective distrust of men. In February 2019, VA received the Veteran’s Vets Center records. Upon intake in July 2018, the Veteran’s counselor reported that the Veteran was not suicidal but had been abused. The counselor indicated that the Veteran appeared neat and cooperative, articulating herself appropriately. Likewise, the Veteran’s memory, affect, and associations were within normal limits. The Veteran did endorse insomnia and a low level of energy. These records disclose that the Veteran sought Vets Center counseling services for several months. Clinicians noted that she maintained relationships with extended family although they were sometimes strained. She presented as depressed and anxious but denied any suicidal ideations or delusions or memory deficits. Speech was appropriate and level of intelligence was average. On March 25, 2019, the Veteran was afforded another VA PTSD examination. A psychologist reviewed the Veteran’s claims file; considered the Veteran’s accounts of her medical history; and conducted an appropriate evaluation. This psychologist provided a current diagnosis of PTSD. The psychologist noted that recurrent depression was now in partial remission. Here, the psychologist opined that the Veteran endorsed daily depressed mood and loss of interest but no other symptoms of depression—hence “partial remission” as the Veteran does not meet the criteria for persistent depressive disorder. The psychologist did note that the symptoms of PTSD and depression overlap significantly. Here too, the psychologist indicated that the Veteran’s level of occupational and social impairment is best summarized as 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. Upon a discussion of the Veteran’s history and the application of the diagnostic criteria, the psychologist noted the Veteran’s reports of symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or work-like setting. She reported that she remained married in a good relationship with her spouse and had custody of two grandchildren from 2015-2017. She was not very social but had some longstanding friendships. She was not working since injuries in a motor vehicle accident As to behavioral observations, the Veteran was well-groomed and attired appropriately. The Veteran was also cooperative and polite. The psychologist noted that the Veteran was a consistent and accurate historian. The Veteran displayed a flattened and constricted affect; however, her language use was within normal limits. Moreover, her thought processes were logical and linear and her memory and concentration were intact. The Veteran did express anger about the military and VA, which is consistent with military sexual trauma (MST)-related PTSD. And, the Veteran showed good insight and judgment. Other subjective endorsements include negative self-beliefs and beliefs that women in general do not count. As noted above, to receive a higher disability rating there would need to be a showing of 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 that is 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); and inability to establish and maintain effective relationships. Such is not disclosed in the evidence of record. At worst, PTSD has manifested as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although general functioning satisfactorily, with normal routine behavior, self-care and conversation. Additionally, this disability presented (at worst) with symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or work-like setting. The Board considered the Veteran’s reports of high levels of anxiety and panic attacks that interfered with work and social relationships. On the other hand, there is no evidence that the Veteran could not leave the home, drive an automobile, and perform daily activities such as shopping. She is a trained registered nurse and may be unable to perform in-person patient care because of physical disabilities and anxiety, but she reported use of a gaming computer, indicating some computer skills that could be used in a telework or office setting with no production pressures. She avoids social gatherings but maintains a marriage, has cared for grandchildren, and has some long term friendships indicating some level of social function. A 50 percent disability rating more-than-adequately contemplates this degree of severity in PTSD symptomatology. The Board has considered the Veteran’s lay contentions concerning increased severity. The Veteran is competent to report discernable symptoms and the Board assigns some probative weight to these reports. See Jandreau, supra. The Board assigns significantly more probative weight to the opinion of the March 25, 2019 VA psychologist. This examiner reviewed the claims file; considered the Veteran’s accounts of her psychiatric history; and conducted an evaluation. Moreover, this clinician evaluated the totality of evidence through established and field-specific criteria. Therefore, the Board finds that the preponderance of evidence is against granting an initial disability rating in excess of 50 percent disabling for service-connected PTSD. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Earlier Effective Date The Veteran argues that she is entitled to an effective date prior to January 28, 2014 for the grant of service connected for PTSD. More specifically, the Veteran posits that the grant of service connection should be effective “back to the original happening.” See September 26, 2015 NOD. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, VA recognized formal and informal claims. A claim is 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). An informal claim is any communication or action indicating intent to apply for one or more benefits and must identify the benefit sought. 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims both formal and informal for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office. These amendments are only applicable with respect to claims filed on or after March 24, 2015, and thus are applicable in the present matters. Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). VA must perform a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F. 3d 1370, 1373 (Fed. Cir. 2004). A review of the evidence of records shows that VA received the Veteran’s applicable VA 21-526EZ (Fully Developed Claim (Compensation)) on January 28, 2015. Indeed, this VA 21-526EZ bears the selfsame receipt date stamp. Turning to the medical evidence of record, the VA clinician provided a formal diagnosis of PTSD on August 3, 2015. Thus, entitlement arose on August 3, 2015 As noted above, an effective date shall be the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Thus, the effective date under law would appear to be January 28, 2015, but such is not the case herein. In this case, the Veteran was awarded an effective grant for the grant of service connection for PTSD one year prior to her January 28, 2015 claim (VA 21-526EZ) based upon 38 U.S.C. § 5110 (b)(2)(A), which allows an effective date up to one year before the date of receipt of claim in certain circumstances where an original claim was filed as a fully-developed claim. This provision does not provide for an effective date more than one-year prior to an original claim. Even extending the most sympathetic tactics of interpretation, the Board simply cannot discern an intent on the part of the Veteran to seek entitlement to service connection for PTSD which comports with governing regulations. See Szemraj, Bannon, both supra. The preponderance of the evidence is against entitlement to an effective date prior to January 28, 2014 for the grant of service connection for PTSD. As such, there are no doubts to be resolved. See 38 U.S.C. § 5.107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.