Citation Nr: 21023610 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 20-16 719 DATE: April 21, 2021 ORDER Entitlement to an evaluation in excess of 70 percent for service-connected acquired psychiatric disorder, not to include posttraumatic stress disorder (PTSD), is denied. Entitlement to an earlier effective date for service-connected acquired psychiatric disorder is denied. REMANDED Entitlement to total disability based on individual unemployability due to service-connected conditions (TDIU) is remanded. FINDINGS OF FACT 1. During the period on appeal, all of the Veteran’s symptoms for an acquired psychiatric disorder manifest as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking, and/or mood; total occupational and social impairment has not been shown. 2. The Veteran’s first communication indicating that he was seeking service connection for an acquired psychiatric disorder was received December 8, 2008; there is nothing in the record received prior to that date which could be construed as an informal claim seeking this benefit. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 70 percent for an acquired psychiatric disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for an effective date earlier than December 8, 2008 for the grant of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155(a), 3.303, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1977 to July 1978. This matter comes before the Board of Veterans’ Appeal (Board) on appeal from a December 2018 and March 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The criteria for a 70 percent rating are 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 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; or difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a 100 percent rating are 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); or disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran contends that his acquired psychiatric disorder warrants a rating in excess of the current 70 percent evaluation. However, after a review of the evidence of record, the Board finds that the preponderance of the evidence is against finding that his symptomatology has manifest to a degree warranting a rating in excess of 70 percent according to DC 9411. During the appeal period, the Veteran’s acquired psychiatric disorder symptomatology included depressed mood; anxiety; suspiciousness; mild memory loss, such as forgetting names, directions or recent events; impairment of short- and long-term memory, for example, retention of only highly learned material, while forgetting to complete tasks; disturbances in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; impaired impulse control, such as unprovoked irritability with periods of violence; hallucinations and delusions; and suicidal ideation. The Veteran did not experience 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; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name as listed in DC 9411 for a 100 percent evaluation. The Veteran was afforded a VA examination in January 2018, and the examiner determined that the Veteran did not experience total occupation and social impairment. The Veteran also underwent a private examination in April 2015, and the private examiner determined that the Veteran did not experience total occupation and social impairment. The medical evidence of record notes that the Veteran attempted suicide three times in his life with the most recent in 1998. He sought treatment for his mental health condition thereafter. Both the April 2015 private and January 2018 VA examiners noted there was still some suicidal ideations but was not found to be in persistent danger of hurting self or others. The record is consistent with the examiners’ findings and negative for reports of suicidal attempts since 1998. There is evidence in the file reporting that the Veteran experienced auditory hallucinations sporadically. However, when taking into account the entirety of the medical evidence, the Board finds that a majority of the time, the Veteran denied experiencing hallucinations or delusions. Furthermore, the evidence does not support finding the Veteran’s symptoms demonstrate a “persistent danger of hurting self or others” or demonstrate “persistent delusions or hallucinations” in alignment with criteria listed under the 100 percent evaluation in DC 9411. In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas “-i.e.,” the regulation requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’“ Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Veteran has experienced occupational and social impairment in most areas, but the Board finds the level of occupational and social impairment experienced by the Veteran does not nearly approximate a 100 percent evaluation because total occupational and social impairment has not been shown. The Board has also taken into consideration the frequency, severity, and duration of the Veteran’s symptoms, and finds the symptoms do not approximate a 100 percent rating. 2. Earlier Effective Date Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101(a) provides that “[a] specific claim in the form prescribed by the Secretary... must be filed in order for benefits to be paid or furnished to any individual.” For VA compensation purposes, a “claim” is defined as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). It must “identify the benefit sought.” Id. Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The Veteran contends generally that he is entitled to an effective date earlier than December 8, 2008 for service connection for an acquired psychiatric disorder, not to include PTSD. Service connection for the condition was granted in a September 2018 Board decision and October 2018 rating decision, effective the date of the claim seeking entitlement to service connection. For the reasons that follow, the Board finds that the Veteran’s earlier effective date claim must be denied. The Veteran’s claim seeking entitlement to service connection for PTSD was received by the VA on December 8, 2008, as indicated by the date stamp on the copy of the document in the claims file. VA regulations are clear that the effective date of an original claim of benefits is the date of the receipt of the claim or the date that entitlement arose, whichever is later. Although the evidence of record may suggest that the Veteran was experiencing symptomatology of his acquired psychiatric disorder prior to December 8, 2008, there is no evidence of any claim for service connection for this symptomatology prior to this date. The Board notes that the Veteran originally filed a claim for PTSD and bipolar, which was later separated into two claims one for service connection for PTSD, which was denied, and another for service connection for an acquired psychiatric disorder, which was granted. Accordingly, December 8, 2008 is the correct effective date, and the claim is denied. REASONS FOR REMAND The Veteran asserts that his service-connected disabilities prevent him from securing or maintaining a substantially gainful occupation. The Veteran’s January 2018 VA examination failed to comment on whether the Veteran’s acquired psychiatric disorder impacted his ability to work. The Veteran submitted a private medical examination where the examiner noted that the Veteran’s symptoms of depression might not make it possible for him to sustain gainful activity. The Board notes this private medical opinion was in support of service connection rather than entitlement to TDIU. Therefore, the private examiner’s statement is unsupported as she failed to provide a rationale or evidence to support her statement. See April 2015 Private Mental Health Statement. In December 2018, the Veteran submitted a claim for TDIU where he claimed that he last worked in December 2016 and had to leave his employment due to his disability. He notes this employment only lasted one month. His prior employment was noted to be in 1996. The Board finds the VA and private medical examinations and opinions are inadequate for adjudication purposes and does not address whether the Veteran’s service-connected disabilities prevent him from securing and maintaining substantially gainful employment. Accordingly, the claim is remanded so that the Veteran can be afforded an additional VA examination to ascertain the effects of his service-connected disabilities have on his employability. The matters are REMANDED for the following action: 1. Make efforts to obtain all outstanding medical records in accordance with the duties set forth in 38 C.F.R. § 3.159(c). 2. Afford the Veteran a VA examination, with an appropriate examiner, to ascertain the effects of his service-connected disabilities (as listed in a March 2020 rating decision) on his ability to secure and follow a substantially gainful occupation. This opinion must address the entire pendency of this appeal. All opinions must be supported by a rationale. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Glaeser, 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.