Citation Nr: 21013520 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-17 312 DATE: March 9, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder (previously rated as anxiety disorder) is denied. Entitlement to an earlier effective date, prior to September 25, 2018, for the award of an increased 70 percent disability rating for PTSD with major depressive disorder is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s PTSD symptoms have not been shown to more closely approximate total occupational and social impairment at any time during the relevant period. 2. The Veteran’s claim, which has been reasonably construed as an increased rating claim for her service-connected acquired psychiatric disability, was received on September 25, 2018. The evidence does not show that an increase in disability occurred within the one year prior to the filing date. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.3, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411. 2. The criteria for entitlement to an effective date earlier than September 25, 2018 for the award of an increased rating for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2005 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board is cognizant of the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability (TDIU) due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran is already in receipt of a TDIU for the entire appeal period. Increased Rating Disability ratings are determined by the application of VAs Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. 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 whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected rating, and the rating of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). PTSD The Veteran seeks a higher rating for her service-connected PTSD. The Veteran’s service-connected PTSD is rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The Veteran’s increased rating claim was received on September 25, 2018. Therefore, the relevant rating period for consideration is from September 26, 2017, one year prior to receipt of the claim, through the present. See 38 C.F.R. § 3.400 (o)(2). The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, and the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, 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 time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. In rating mental disorders 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). The Veteran underwent a VA PTSD examination in November 2018. A PTSD diagnosis was confirmed by the examiner. The Veteran reported living with her husband and two daughters. She stated she has few friends and her primary support is her husband and her brother. The Veteran has been unemployed since 2016, and she had difficulty concentrating and completing tasks on time. The Veteran reported suicidal ideation without plan or intent. Upon examination, the Veteran was alert and fully oriented. She was well-groomed with good hygiene. Thought process was intact with no history of hallucinations or delusions. Speech was normal in rate, rhythm and volume. There was no evidence of psychomotor agitation/retardation. Her affect was depressed. The examiner noted symptoms including depressed mood; anxiety; suspiciousness; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and suicidal ideation. A March 2019 VA treatment note shows the Veteran reported having a history of mental health issues with no treatment since discharge. The Veteran denied being suicidal and she was noted by observation to have poor eye-contact. The Board finds that, in terms of the severity, frequency, and duration, the Veteran’s symptoms most closely approximate the symptoms contemplated by a disability rating of 70 percent, as they are significantly less severe, less frequent, and shorter in duration than the symptoms contemplated by a 100 percent disability rating. The symptoms do not prevent the Veteran from interacting with others at least occasionally. The Veteran reported few friends and support from her husband and brother. The symptoms do not totally impair her socially, as required for a 100 percent rating. The VA examination indicates that the Veteran presented as fully alert and oriented at all times. She was not observed as having altered mental status or illogical or incoherent speech or thought processes. She was also not observed as exhibiting signs of delusion or mania. While she has reported suicidal ideation without intent, the evidence does not show she is not in persistent danger of hurting self or others. The evidence does not show the Veteran experience any of the symptoms, listed or unlisted, contemplated by a 100 percent disability rating. As the preponderance of the evidence is against the assignment of a higher disability rating, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Ver. App. 49 (1990). Earlier Effective Date Earlier Effective Date for Increased Disability Rating for PTSD In the December 2020 brief, the Veteran’s attorney asserted that VA should assign an earlier effective date for the Veteran’s claim for service connection for PTSD. The Veteran’s attorney seems to argue that because the November 2018 increased rating was based on records created in 2006 while the Veteran was still in service, the effective date for the increased disability rating should be from November 4, 2006, the day after the Veteran’s separation. In a November 2018 rating decision, the Veteran was granted an increased 70 percent disability rating for PTSD with depressive disorder with an effective date of September 25, 2018, the day the RO received the claim. The Board notes that while the Veteran filed a claim for service connection for PTSD in September 25, 2018, the RO treated it as a claim for an increased disability rating for her already service-connected acquired psychiatric disability. All psychiatric disabilities are rated together as one under the General Rating Formula for Mental Disorders; and, all the Veteran’s symptoms are considered under that criteria. See 38 C.F.R. § 4.130. As the award of service connection for PTSD essentially resulted in an increased rating considered part and parcel of or associated with the already service-connected acquired psychiatric disability, the Board finds that the regulations addressing the effective date for an increased rating claim are applicable. The Veteran has not asserted, and the record does not reveal any prior increased rating claim between the 2007 grant of service connection for an acquired psychiatric disability and the receipt of the September 2018 claim. Further, there is no evidence available from the one year prior to the date of the Veteran’s September 2018 claim to demonstrate an increase in the disability during that period. The effective date for an increased rating is to be the earliest date it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Determining an appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). Based on the foregoing, the Board finds that the evidence preponderates against a finding of entitlement to an effective date earlier than September 25, 2018, for an increased rating for PTSD as the evidence does not demonstrate that an increase in her PTSD was factually ascertainable within the one year preceding the filing date, nor is there evidence of a previous claim for an increased rating. Consequently, the effective date of September 25, 2018, is the earliest allowable date under the law, and an earlier effective date for the 70 percent disability rating for PTSD is not warranted. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, Associate 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.