Citation Nr: 21014557 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-19 395 DATE: March 15, 2021 ORDER Entitlement to an effective date earlier than July 25, 2009, for the grant of service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to an increased evaluation in excess of 50 percent prior to January 17, 2018 for PTSD is denied. REMANDED Entitlement to an increased evaluation in excess of 50 percent on/after January 17, 2018 for PTSD is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. FINDINGS OF FACT 1. A review of the record reveals that the Veteran did not file an informal or formal service connection claim for her PTSD prior to July 25, 2009, nor was the Veteran’s claim received within one year of separation from active service. Thus, the effective date for service connection is July 25, 2009, the date the VA received the Veteran’s claim. 2. The preponderance of the evidence supports a finding that prior to January 17, 2018, the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 25, 2009, for the grant of service connection for PTSD are not met. 38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.151, 3.156, 3.400. 2. 2. The criteria for an increased evaluation in excess of 50 percent prior to January 17, 2018 for PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1981 to September 1982. The Veteran submitted a January 2021 request to withdraw her hearing before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. Mental Disorders Under the General Formula for Mental Disorders (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’s PTSD falls under Diagnostic Code 9411 Under the General Formula for Mental Disorders. Under Diagnostic Code 9403, 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. Id. 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. Diagnostic Code 9411. Effective Date The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. 1. Entitlement to an effective date earlier than July 25, 2009, for the grant of service connection for PTSD. The Board observes that the Veteran’s service connection for PTSD has been assigned an effective date of January 25, 2009. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an 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. 38 C.F.R. § 3.155 (a). In the present case, there is simply nothing in the record to suggest an effective date prior to January 25, 2009 is warranted. The Board notes that the Veteran first established a direct relationship between her PTSD, and her time in-service during an August 2010 VA examination. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of claim for which it was successfully filed. The Board notes that prior to July 25, 2009, there is no evidence in the record of claim for PTSD being filed. Thus, the effective date is the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to July 25, 2009 for the grant of service connection for PTSD. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to July 25, 2009 for the award of service connection for PTSD. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107.   2. Entitlement to an increased evaluation in excess of 50 percent prior to January 17, 2018 for PTSD The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating in excess of 50 percent prior to January 17, 2018. In an August 2015 rating decision, the Veteran was service connected for PTSD and assigned an initial evaluation of 30 percent effective July 25, 2009. This was subsequently raised to 50 percent. Since, then the Veteran has asserted that she is entitled to an increased evaluation. The Veteran was assigned a temporary total evaluation from November 15, 2017 to January 16, 2018 for her period of hospital treatment in excess of 21 days. Nothing herein will interfere with that evaluation. In a February 2016 VA PTSD examination, the Veteran was diagnosed with PTSD, cocaine disorder, and alcohol disorder. Occupational and social impairment due to mild or transient symptoms which decreases work efficiency and the ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication was also noted by the examiner. During the examination, the Veteran reported that she was currently employed and has been working in a substance abuse clinic since 2015. The Veteran presented alert, well oriented, rested, and did not appear to be in distress. Her speech was noted as normal and fluent with no evidence of cognition impairment. The examiner diagnosed the Veteran as negative for lapses of memory, distractibility, suicidal or homicidal thoughts. At the time of the examination, the Veteran reported having been sober from cocaine and alcohol use for thirty days. The examiner also noted spaciousness; chronic sleep impairment; and disturbance of motivation but noted that the Veteran is competent to manage her financial affairs. Since 2015, VA outpatient treatment records reveal that the Veteran has regularly undergone psychological therapy for her PTSD and other psychiatric disorders including substance addiction. As noted above the Veteran was hospitalized for psychiatric treatment for a period in excess of 21 day and received a temporary total evaluation from November 15, 2017 to January 16, 2018. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment due to mild or transient symptoms which decreases her work efficiency and the ability to perform occupational tasks only during periods of significant stress. Furthermore, while the February 2016 examiner records show that the Veteran reported recent recovery from substance abuse, spaciousness; chronic sleep impairment; and disturbance of motivation the duration and frequency of these reported symptoms do not appear to be of such severity to warrant the assignment of a 70 percent rating. In fact, during her February 2016 VA examination, the Veteran reported being currently employed at a substance abuse clinic and thirty days of sobriety from alcohol and substance abuse. Moreover, the Veteran was noted by the examiner as alert, well oriented, rested, and did not appear to be in distress. Her speech was also noted as normal and fluent with no evidence of cognitive impairment. The Board also reviewed and carefully considered the Veteran’s lay statements and Appellants Brief asserting that the severity of her PTSD prior to January 17, 2018 warrants an increased evaluation in excess of 50 percent. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to her senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to PTSD as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). While the Veteran reports that the severity of her PTSD prior to January 17, 2018 warrants an evaluation in excess of 50 percent, the competent and credible evidence of the record reveals that the Veteran does not experience 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 causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds the severity, frequency, and duration of the Veteran’s symptoms prior to January 17, 2018 more closely approximates 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 Board finds that based on the evidence of the claims file, the 50 percent evaluation currently assigned better approximates the trajectory of the Veteran’s current PTSD symptoms prior to January 17, 2018. As the Board reviewed the Veteran’s records and determined that they do not support an increased disability rating in excess of 50 percent prior to January 17, 2018 for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND 1. Entitlement to an increased evaluation in excess of 50 percent on/after January 17, 2018 for PTSD is remanded. The Veteran contends that the severity of her PTSD warrants an increased evaluation in excess of 50 percent. Review of the record indicates that in a March 2018 rating decision, the Veteran was most recently reassigned a 50 percent evaluation for her PTSD after the prior assignment of a total rating for a period of hospitalization related to her PTSD. The Veteran last underwent a VA examination for her PTSD disorder in February 2016. In order to extend every consideration to the Veteran, a VA examination must be scheduled to determine the severity of the Veteran’s PTSD. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for a left knee disorder is remanded. The Veteran contends that her left and right knee disorders are related to her time in-service. Evidence of the record indicates that the Veteran has not undergone a VA examination, nor received a medical opinion concerning the etiology of her reported left and right knee disorders. In order to afford the Veteran every right of due process, a VA examination along with an opinion needs to be scheduled to further investigate the Veteran’s claim. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for any care providers who may possess new or additional evidence pertinent to the remaining issues on appeal. This should include a release of information form for any private treatment pertinent to her remanded disabilities. If she provides the necessary release(s), assist her in obtaining the records identified. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and her representative should be notified. 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for any pertinent examinations for her remanded disabilities. The examiners should review the record. All indicated tests should be conducted and the results reported. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner must provide a full description of all symptoms and manifestations associated with the Veteran’s remanded disabilities above. The examiner’s opinions should address the Veteran’s particular remanded and answer the following: (a) (For the psychiatric disorder examiner); provide a full description of all symptoms and manifestations associated with the Veteran’s remanded PTSD. The examiners must also discuss any functional and occupational limitations associated with the Veteran’s PTSD. All clinical findings should be reported in detail. (b) (For the knee disorder examiner); Is it at least as likely as not (50 percent or greater probability) that the onset of the Veteran’s reported right and left knee disorder is related to an in-service event or occurrence? The examiner should discuss the Veteran’s reported symptoms including any pain with functional impairment since separation. If the onset of a right or left knee disorder is not found to be related to the Veteran’s time in-service, that should be specifically set out with the factors considered in making that determination. Please provide a complete rationale for all opinions entered and review the entire record including lay statements. 3. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. 3.The AOJ must ensure that the examiner’s report complies with this remand and answers the questions presented in the request. The AOJ must also ensure that the examiner documents consideration of the electronic claims file. If the report is insufficient, the AOJ should take corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.