Citation Nr: 21021422 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 17-62 298A DATE: April 12, 2021 ORDER Entitlement to an effective date of October 18, 2011, but no earlier, for the award of a 70 percent rating for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol dependence (hereinafter “PTSD”) is granted. REMANDED Entitlement to an effective date prior to March 29, 2013 for the award of a 30 percent rating for coronary artery disease and ischemic heart disease (heart disability) is remanded. Entitlement to a rating in excess of 70 percent for PTSD is remanded. Entitlement to a rating in excess of 30 percent prior to January 4, 2020 for heart disability and in excess of 60 percent thereafter is remanded. Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance of another person and/or at the housebound rate is remanded. FINDING OF FACT 1. A June 2012 rating decision granted service connection for PTSD and assigned a 50 percent rating, effective October 18, 2011; new and material evidence was received within one year of the rating decision that prevented the rating decision from becoming final. 2. Resolving reasonable doubt in the Veteran's favor, the severity, frequency, and duration of his PTSD symptoms more closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an effective date of October 18, 2011, but no earlier, for the award of a 70 percent rating for PTSD are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1968 to March 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2019 decision, the Board denied the Veteran’s claims for entitlement to earlier effective dates for PTSD and heart disability. The Veteran appealed that decision, in part, to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Partial Remand (JMPR) the parties agreed that the Board applied the incorrect rating criteria in determining whether earlier effective dates were warranted for the assigned ratings. In October 2020, the Court granted the JMPR, vacated the December 2019 Board decision to the extent it denied the earlier effective date claims, and remanded it to the Board for compliance with the terms of the JMPR. 1. Entitlement to an effective date of October 18, 2011, but no earlier, for the award of a 70 percent rating for PTSD is granted. A January 2014 rating decision granted an increased rating of 70 percent for the Veteran’s PTSD effective March 29, 2013. The Veteran asserts that an earlier effective date is warranted. Generally, the effective date for an award of benefits based upon an increased evaluation for a service-connected disability is the date on which a claim is received, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o) (2020). The effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the claim is received within one year from such date, otherwise, date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2020). VA regulations provide that new and material evidence received prior to the expiration of the period for appealing a rating decision will be considered as having been filed in connection with the pending claim. 38 C.F.R. § 3.156(b) (2020). When evaluating the finality of a rating decision, 38 C.F.R. § 3.156(b) requires VA to evaluate records and submissions received during the relevant appeal period and determine whether they contain new and material evidence relevant to a pending claim. See Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with pervious evidence of record, relates to an unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010) (noting the low threshold for new and material evidence is satisfied where the evidence is new and raises a reasonable possibility of substantiating the claim). A June 1, 2012 rating decision granted service connection for PTSD, effective October 18, 2011, and assigned a 50 percent rating. The June 1, 2012 rating decision expressly noted that a 70 percent rating was not warranted because, inter alia, the Veteran did not have unprovoked irritability. The June 1, 2012 rating decision noted that VA treatment records dated through May 11, 2012 were considered in adjudication of the claim. On June 19, 2012 additional VA treatment records, including a May 14, 2012 VA mental health note, were associated with the claims file. The May 14, 2012 record noted that the Veteran reported mood swings, that his family told him he was different from day to day, and that he was sometimes “irritable and snapy [sic].” As new and material evidence regarding the severity of the Veteran's PTSD was received within one-year of the June 1, 2012 rating decision, it never became final. The Veteran's PTSD rating was readjudicated in a January 2014 rating decision. However, within one year of that decision, new and material evidence regarding the severity of the Veteran's PTSD was again received, in the form of May 2014 and September 2014 VA Forms 21-8940 wherein the Veteran asserted that he was unemployable, inter alia, because of his PTSD. Thereafter, the claim was readjudicated in a December 2014 rating decision, which the Veteran timely appeal and ultimately led to the current appeal. As such, the current increased rating claim relates back to the initial grant of service connection for the Veteran's PTSD and the "date of claim" is October 18, 2011. Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014) (holding that VA has a statutory duty to determine the character of newly submitted evidence and that until such a determination is made, the claim does not become final). The Board acknowledges that a June 20, 2012 rating decision code sheet updated the Veteran’s service-connected diagnosis from PTSD to PTSD with depressive disorder and alcohol dependence with sustained partial remission. Nevertheless, that was an administrative correction only. See Rating Decision Code Sheet (“Depressive disorder and alcohol dependence was added to PTSD diagnosis. Examiner opined they are related to veteran’s PTSD”). As such, the June 20, 2012 rating decision did not readjudicate the Veteran’s PTSD rating with a consideration of the additional VA treatment records that were obtained on June 19, 2012. See June 20, 2012 rating decision narrative and June 21, 2012 notification letter (failing to discuss the Veteran’s PTSD rating). As such, the June 20, 2012 rating decision does not meet the requirements set forth in Beraud v. McDonald, which would have allowed the Veteran’s initial PTSD rating to become final. 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). Accordingly, the next inquiry is that date that entitlement arose, which is the date that an increased rating was warranted under 38 C.F.R. § 4.130, Diagnostic Code 9411. 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). 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. Resolving reasonable doubt in the Veteran’s favor, the Board finds the severity, frequency, and duration of his symptoms more closely approximate the symptoms and impairment contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. VA treatment records and the April 2012 and November 2013 VA examination reports, show that the Veteran’s PTSD was manifested by symptoms associated with a 70 percent rating including impaired impulse control as demonstrated by irritability or outburst of anger, an inability to establish and maintain effective relationships, and difficulty in adapting to stressful circumstances. The Veteran also reported sometimes seeing people who are not there in his peripheral vision, sometimes becoming disoriented to the point of not recognizing family members and chasing them out of his home, and sometimes wishing that he could go back and be killed in Vietnam. See November 2013 VA PTSD examination report. Additionally, the November 2013 VA examiner expressly opined that due to the severity of the Veteran’s PTSD symptoms and his inability to work following his mental breakdown in 1993, it was his opinion that the Veteran’s PTSD had resulted in a higher level of impairment than was reflected in the prior VA examination report and that it had resulted in occupational and social impairment with deficiencies in most areas. Considering the above, the Board finds the level of impairment caused by the Veteran’s symptoms and level of impairment most nearly approximate the criteria for a 70 percent rating. As October 18, 2011 is the later of the date of claim and date entitlement arose, it is the proper effective date. 38 C.F.R. § 3.400(o) (2020). As service connection was not in effect until October 18, 2011, that is the earliest possible effective date for the Veteran's 70 percent rating for his PTSD. 38 C.F.R. § 3.400(o) (2020). As discussed below, the Board is remanding the other claims to obtain outstanding medical evidence. Nevertheless, for the reasons set forth above, this evidence cannot establish entitlement to an earlier effective date for the Veteran's 70 percent rating for his PTSD as a matter of law. Accordingly, an effective date of October 18, 2011, but no earlier, is granted. REASONS FOR REMAND 1. Entitlement to an effective date prior to March 29, 2013 for the assignment of a 30 percent disability rating for a heart disability is remanded. 2. Entitlement to a rating in excess of 70 percent for PTSD is remanded. 3. Entitlement to a rating in excess of 30 percent for a heart disability for the period prior to January 4, 2020 is remanded. 4. Entitlement to a rating in excess of 60 percent for a heart disability since January 4, 2020 is remanded. 5. Entitlement to SMC based on a need for regular aid and attendance of another person and/or at the housebound rate is remanded. The evidence indicates there may be outstanding relevant VA treatment records. Specifically, VA treatment record from June 12, 2020 and July 8, 2020 indicate that the Veteran was to return for follow up appointments in October 2020 and on November 18, 2020. VA treatment records after August 4, 2020 have not been associated with the claims file. A remand to obtain the outstanding records is required. VA treatment records from October 5, 2012, October 17, 2012, April 25, 2014, June 30, 2014, January 27, 2015, March 17, 2015, April 29, 2015, May 14, 2015, May 20, 2015, June 2, 2015, July 24, 2015, August 17, 2015, October 17, 2015, November 19, 2015, December 16, 2015, May 25, 2016, July 13, 2016, January 13, 2017, January 30, 2017, August 16, 2017, September 29, 2016, February 28, 2017, March 8, 2017, March 11, 2017, March 20, 2017, March 22, 2017, March 25, 2017, April 6, 2017, April 14, 2017, June 29, 2017, July 18, 2017, July 19, 2017, August 14, 2017, September 23, 2017, December 7, 2017, January 8, 2018, February 8, 2018, February 16, 2018, February 20, 2018, March 14, 2018, May 5, 2018, May 26, 2018, June 5, 2018, June 6, 2018, June 15, 2018, June 19, 2018, June 25, 2018, July 20, 2018, July 30, 2018, August 13, 2018, September 20, 2018, September 26, 2018, October 5, 2018, December 6, 2018, December 14, 2018, December 15, 2018 December 17, 2018, January 11, 2019, January 17, 2019, February 15, 2019, March 7, 2019, March 8, 2019, April 8, 2019, June 5, 2019, June 13, 2019, July 8, 2019, August 7, 2019 September 17, 2019, October 3, 2019, October 24, 2019, November 14, 2019, December 6, 2019, and December 9, 2019, January 3, 2020, February 4, 2020, March 3, 3020, April 7, 2020, May 1, 2020, May 6, 2020, June 8, 2020, and June 12, 2020 indicate that an agent orange note, emergency room records, administrative notes, procedure notes, fee service home health records, non-VA records, and inpatient treatment records from had been scanned. It does not appear that the scanned records have been associated with the claims file. A remand to obtain the outstanding records is required. Regarding the earlier effective date claim for the Veteran’s heart disability, the Board notes that the March 2012 VA heart examination report associated with the claims file is missing page four. Specifically, it appears that the backside of page four, which was blank, was scanned rather than the front page that contained the medical evidence. Accordingly, on remand a complete copy of the March 2012 VA heart examination report should be associated with the claims file. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records dated since August 4, 2020 as well as the Vista Imaging records referenced in the October 5, 2012, October 17, 2012, April 25, 2014, June 30, 2014, January 27, 2015, March 17, 2015, April 29, 2015, May 14, 2015, May 20, 2015, June 2, 2015, July 24, 2015, August 17, 2015, October 17, 2015, November 19, 2015, December 16, 2015, May 25, 2016, July 13, 2016, January 13, 2017, January 30, 2017, August 16, 2017, September 29, 2016, February 28, 2017, March 8, 2017, March 11, 2017, March 20, 2017, March 22, 2017, March 25, 2017, April 6, 2017, April 14, 2017, June 29, 2017, July 18, 2017, July 19, 2017, August 14, 2017, September 23, 2017, December 7, 2017, January 8, 2018, February 8, 2018, February 16, 2018, February 20, 2018, March 14, 2018, May 5, 2018, May 26, 2018, June 5, 2018, June 6, 2018, June 15, 2018, June 19, 2018, June 25, 2018, July 20, 2018, July 30, 2018, August 13, 2018, September 20, 2018, September 26, 2018, October 5, 2018, December 6, 2018, December 14, 2018, December 15, 2018 December 17, 2018, January 11, 2019, January 17, 2019, February 15, 2019, March 7, 2019, March 8, 2019, April 8, 2019, June 5, 2019, June 13, 2019, July 8, 2019, August 7, 2019 September 17, 2019, October 3, 2019, October 24, 2019, November 14, 2019, December 6, 2019, and December 9, 2019, January 3, 2020, February 4, 2020, March 3, 3020, April 7, 2020, May 1, 2020, May 6, 2020, June 8, 2020, and June 12, 2020. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain and associated them the claims file a complete copy the March 2012 VA heart examination report, to include the missing fourth page. 3. Then, readjudicate the claims on appeal. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Anderson 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.