Citation Nr: 21024581 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 17-57 345 DATE: April 23, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder (PTSD), prior to November 24, 2015, is granted. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to November 24, 2015, is granted. REMANDED Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine condition is remanded. Entitlement to service connection for a right elbow condition is remanded. FINDINGS OF FACT 1. Prior to November 24, 2015, the Veteran’s service-connected PTSD was manifested by symptoms approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. 2. Prior to November 24, 2015, the Veteran’s service-connected PTSD alone rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to November 24, 2015, the criteria for entitlement to a disability rating of 70 percent, but no higher, for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a TDIU have been met prior to November 24, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to April 1979. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2014, January 2015, and September 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge during a June 2020 Board hearing and a transcript of that proceeding is of record. With regards to an increased rating claim for PTSD, after granting service connection for PTSD with 30 percent rating effective January 21, 2015, the RO increased this initial rating to 70 percent, effective November 24, 2015. Because this was not a total grant, the issue of entitlement to a higher initial rating remained on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). However, during the Board hearing, the Veteran limited his claim for a higher initial rating for service-connected PTSD to the period prior to November 24, 2015. See Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) (en banc), aff’d 39 F.3d 1574 (Fed. Cir. 1994) (holding a Veteran may limit an appeal as he wishes and, such limitation serves to limit, if not remove, the Board’s authority to adjudicate the claim). Specifically, he testified that he was satisfied with the 70 percent rating assigned for his service-connected PTSD, but disagreed with the 30 percent rating assigned prior to November 24, 2015. Accordingly, the Board has recharacterized his appeal for PTSD as entitlement to an initial rating higher than 30 percent prior to November 24, 2015. In a June 2018 rating decision, the Veteran was granted TDIU effective November 24, 2015. However, a TDIU claim had been reasonably raised by the record as part of the appeal for an initial higher rating for PTSD. Therefore, the Board has taken jurisdiction over this issue. Since the issuance of the January 2018 Statement of the Case, additional evidence to include VA examinations and VA treatment records have been obtained. However, the Board finds that a waiver for RO’s initial consideration is not required as they are either not relevant to the issues on appeal and/or do not pertain to the specific appeal period at issue (ie. January 2015 to November 2015). Furthermore, although the Board is remanding for certain outstanding VA treatment records, to the extent that these to-be-obtained records are outside of the appeal period (i.e. from 1979 to March 1998, from January 2018 to the present), they are not relevant for the time period on appeal (2015). Therefore, the Board finds that there is no merit in delaying adjudication of the PTSD and TDIU issues. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding a claim, 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; 38 C.F.R. § § 3.102; 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 to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. Entitlement to a disability rating in excess of 30 percent for service-connected post-traumatic stress disorder (PTSD) prior to November 24, 2015 is granted. The Veteran contends that he started receiving mental health treatment from around 2014 and that the severity of his symptoms documented in the November 2015 Disability Benefits Questionnaire (DBQ) examination were already ongoing, even prior to that exam date (November 24, 2015). As briefly addressed earlier, the Veteran is in receipt of a 30 percent rating for his PTSD under Diagnostic Code 9411 from January 21, 2015 to November 24, 2015. After reviewing all pertinent records and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran warrants a 70 percent rating prior to November 24, 2015. During a September 2015 DBQ psychiatric examination, the Veteran reported symptoms of anger and irritability, hypervigilance, strong startle responses, feeling isolated/detached, and sleep disturbances, among others. Although the examiner concluded at the time that his symptoms did not arise to the level of interfering with occupational and social functioning, he was still noted to have lost multiple jobs, to include his most recent position in 2011, due to his “bad attitudes” associated with his service-connected PTSD—i.e. angry outbursts, irritable behavior (with little or no provocation) typically expressed as verbal or physical aggression toward people of object/getting into verbal arguments. Furthermore, a November 2015 DBQ examination, completed by Dr. Budisin, provides that he has been treating the Veteran since 2014, and further makes retroactive observations as to his symptoms that had been ongoing (such as impaired impulse control, difficulty in adapting to stressful circumstances, difficulty in establishing and maintaining effective work and social relationships) even prior to the November 2015 DBQ examination date. Thus, considering the severity and the frequency of his symptoms—i.e. frequent episodes of impaired impulse control (such as unprovoked irritability with periods of violence), continuous difficulty in adapting to stressful circumstances— and in light of the fact that these conditions were found to have been ongoing even prior to November 24, 2015, the Board finds that the Veteran warrants a 70 percent rating for his service-connected PTSD prior to November 24, 2015. The Board notes the RO used the effective date of November 24, 2015 as the date the evidence showed the condition had worsened, based on the date VA received the report from Dr. Budisin. That is, however, incorrect. When a claim is pending, the date the evidence is submitted or received is irrelevant when considering the effective date of an award, if the evidence regards symptoms present for a period of time prior to the receipt date. McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Here, Dr. Budisin’s November 2015 statement indicated he had been treating the Veteran since August 2014, and the underlying VA treatment records support that the symptoms and impairment identified in the November 2015 DBQ had been present throughout 2015. While the Board also considered whether the Veteran warrants a rating in excess of 70 percent, the Board finds such not applicable. The Veteran has never exhibited symptoms comparable to gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names or close relatives, own occupation, or own name. Although the evidence shows that he manifested angry outbursts and irritable behaviors at times, there is no evidence he persistently posed danger of hurting self or others. Instead, he consistently denied having any plan, thoughts, or intent to hurt or kill himself or others. Thus, in resolving reasonable doubt in favor of the Veteran and in light of the facts discussed above, the Board finds that the Veteran warrants a 70 percent rating for his service-connected PTSD prior to November 24, 2015. 2. Entitlement to a TDIU prior to November 24, 2015 is granted. The Veteran believes that he was fired due to his attitude issues related to his service-connected PTSD, and adds that his last full-time position terminated around June 2011 due to his getting into a fight with a customer and not following the workplace policies. With the higher rating grant herein, the Veteran now has one service-connected disability (PTSD) rated as 70 percent. Thus, he meets the schedular TDIU criteria under 38 C.F.R. § 4.16(a). TDIU is warranted if the evidence shows that he has been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, considering his specific educational and employment background, but without regard to age, non-service connected disabilities, or previous unemployability status. See 38 C.F.R. §§ 4.16(a), 4.19. After a full review of the record, and resolving reasonable doubt in favor of the Veteran, the Board finds that this is the case here. Therefore, entitlement to a TDIU is granted. His VA 21-8940 form shows that he last worked full-time as a donation coordinator at the Salvation Army until June 2011, and he described his duties as loading donations on the truck and handing customers the receipts (see Board hearing testimony and VA 21-8940 form). As for other work history, he testified that he had worked as a forklift operator and as a warehouse worker. As for any education or training, he stated in the VA 21-8940 form that he had four years of high school education and about a year-long training on comprehensive welding. After reviewing all pertinent records and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran is warranted TDIU prior to November 24, 2015. Here, medical evidence of records consistently show that the Veteran has been fired from multiple jobs due to his bad attitude/fighting associated with his PTSD, to include his most recent job as a donation coordinator due to his getting into an argument/anger outburst. Although the Board acknowledges that the Veteran’s past work experience includes positions permitting somewhat isolated work environment and/or not requiring as much personal interactions (ie. forklift operator/warehouse worker)—and considering that his primary symptom of PTSD being impaired impulse control/irritable behaviors and that such symptoms would less likely be an issue in such isolated work environment—considering that he has been fired multiple times due to these very symptoms (impaired impulse control, etc), regardless of the work environment/types of jobs, and resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran warrants a TDIU prior to November 24, 2015. REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen a claim of service connection for a lumbar spine condition is remanded. 2. Entitlement to service connection for a right elbow condition is remanded. In November 2015, the Veteran submitted VA Form 21-4142, Authorization for Release of Information to the Department of Veterans Affairs (VA), and requested VA’s assistance to obtain relevant treatment records from Jesse Brown VA Medical Center (VAMC) from 1979 to the present. In November 2015, the VA Private Medical Records (PMR) Retrieval Center issued a “Medical Records Request Reject Notice” because the request did not meet the criteria for action under the PMR program guideline because they were not private treatment records. To date, only the records from April 1998 to January 2018 from that facility have been obtained, and it does not appear that VA has made any additional efforts to obtain the outstanding records identified by the Veteran in November 2015 (i.e. from 1979 to March 1998). Moreover, the Board notes that these outstanding records would pre-date VA’s electronic medical records systems, for which searches must be made of retired/archived paper records. However, there is no indication that RO ever conducted a search for paper records. Thus, the Board finds that these outstanding and relevant treatment records should be sought upon remand in order to fulfill VA’s duty to assist. With regards to the Veteran’s elbow disability, while a negative VA medical opinion/examination has been obtained, if and only if any additional treatment records are received that provide any pertinent information relating to his elbow disability, the RO should send the claims file for a medical addendum opinion. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file VA treatment records from Jesse Brown VAMC (a.) From 1979 to March 1998. Searches must be made of archived/retired paper records with documentation of negative responses. If the records do not exist or further attempts to obtain the records would be futile, make a formal finding of unavailability, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). (b.) From January 2018 to the present. 2. IF AND ONLY IF the obtained records provide additional pertinent information relating to post-service treatment of the right elbow prior to 1998, send the claims file to the August 2015 VA examiner (or to another VA examiner if unavailable) for a medical addendum opinion. The examiner should state whether the right elbow condition is as likely as not related to service, to include the elbow injury shown in the records. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.