Citation Nr: 21028161
Decision Date: 05/10/21	Archive Date: 05/10/21

DOCKET NO. 20-06 636
DATE: May 10, 2021

ORDER

Entitlement to an effective date of July 15, 2008 for service connection for other specified trauma and stressor related disorder and depressive disorder is granted, subject to laws and regulations governing the payment of monetary benefits. 

Entitlement to an evaluation of 50 percent disabling effective July 15, 2008, for other specified trauma and stressor related disorder and depressive disorder is granted.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.

FINDINGS OF FACT

1. Construed liberally, the Veteran's notice of disagreement dated February 24, 2009 was an effective notice of disagreement in response to the January 2009 rating decision denying the Veteran's claim of psychosis. 

2. From July 15, 2008, the evidence of record shows that the Veteran's symptoms for other specified trauma and stressor related disorder most closely reflect the symptoms of impairment of short and long term memory, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, occupational and social impairment with reduced reliability and productivity, panic attacks more than once a week. 

3. The evidence of record reflects that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment.

CONCLUSIONS OF LAW

1. An effective date of July 15, 2008, is warranted for the award of service connection for other specified trauma and stressor related disorder and depressive disorder. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155(a), 3.400 (2019).

2. Resolving all reasonable doubt in favor of the Veteran, the criteria for a 50 percent rating, but not higher, for the Veteran's other specified trauma nad stressor related disorder and depressive disorder from July 15, 2008, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.130 (2019).

3. The criteria for establishing entitlement to TDIU benefits have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1966 to June 1968, to include service in Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a timely notice of disagreement in September 2019. The RO issued a statement of the case (SOC) in December 2019. The Veteran filed a VA Form 9 in February 2020. This matter is now properly before the Board. 

Additionally, the Board finds that the Veteran's initial claim for service connection was filed in July 2008. The RO issued a rating decision denying service connection for psychosis in January 2009. The Veteran filed a timely notice of disagreement (NOD) in February 2009. The RO never issued an SOC in response to the Veteran's notice of disagreement. The Board finds that the Veteran's February 2009 notice of disagreement was valid, and since an SOC was not issued the claim from July 2008 remains open. 38 C.F.R. § 19.26. 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU rating is part of an appeal for an increased rating claim when such claim is raised by the record.  Here, the Board notes that the Veteran submitted an application for increased compensation based on unemployability in April 2020. As such, the Board finds that the record raises a claim for TDIU.

1. Entitlement to an effective date of July 15, 2008 for service connection for other specified trauma and stressor related disorder and depressive disorder. 

In July 2008, the Veteran filed a claim for service connection for psychosis. In a January 2009 rating decision, the RO denied the Veteran's claim. In a letter dated February 24, 2009 and received by the Board in February 2009, the Veteran handwrote a note which explicitly stated, "Notice of Disagreement" and noted "please refer to my VA medical records". 

The Board first must determine whether the Veteran's notice of disagreement received in February 2009 was a valid NOD. If the Veteran's NOD was valid, then the initial claim filed in July 2008 would remain in appellate status until the issuance of a statement of the case. See 38 C.F.R. § 19.26. However, if the Veteran did not file a valid NOD, the decision would become final and could only be reopened upon the submission of new and material evidence. See 38 C.F.R. §§ 20.302, 20.1103. The Board acknowledges that as of March 2015 the VA has amended its regulations related to filing NODs by requiring them to be submitted on forms prescribed by the Secretary when such forms are sent to claimants. See 38 C.F.R. § 20.201(a). However, these regulations went into place after the Veteran filed the NOD at issue. 

Review of the applicable regulations and relevant jurisprudence reveals that a valid NOD traditionally consists: a written communication that might be reasonably construed as 'dissatisfaction or disagreement with an adjudicative determination' by the agency of original jurisdiction, with a 'desire for appellate review', filed within one year from the date that the regional office  mailed notice of the adjudicative determination. See 38 C.F.R. § 20.201(b), 20.302(a); see also Robinson v. Shinseki, 557 F.3d 1355, 1362 (Fed. Cir. 2009) (holding that a claimant's efforts to raise issues on direct appeal should be liberally construed.)

After sending its January 2009 denial letter, the RO received a written letter from the Veteran referencing his VA medical records. The Veteran's letter explicitly stated that it is a Notice of Disagreement. Additionally, there were no other rating decisions issued prior to that letter dated February 2009. The only rating decision issued within one year of that letter was the January 2009 denial letter. Based on these dates, and the fact that there were no other applications submitted within this time range, it is reasonable for the Board to afford the Veteran the benefit of the doubt and conclude that the February 2009 correspondence dealt with the January 2009 rating decision denying the Veteran's claim for service connection of psychosis. 

The second issue before the Board is whether the Veteran's July 2008 claim for service connection of psychosis included service connection for other specified trauma and stressor related disorder and depressive disorder. 

Based upon the Veteran's statements, service treatment records, VA treatment records, and VA examination reports, and reading his submissions in the light most favorable to him, the Board finds that a claim for service connection for other specified trauma and stressor related disorder and depressive disorder was raised as part of the Veteran's initial claim for psychosis in July 2008. See Criswell v. Nicholson, 20 Vet. App. 501, 503-504 (2006). The Board finds that the Veteran's claim for psychosis is closely related to other specified trauma and stressor related disorder and depressive disorder although it may be emphasized by different symptoms. The Veteran, as a lay person in filing for his claim, could not have been expected to have either "the legal or medical knowledge to narrow the universe of his claim or his current condition" to other specified trauma and stressor related disorder and depressive disorder. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). (the scope of a claim includes any disability that may reasonably be encompassed by several factors-including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits, or VA obtains in support of the claim). 

In the Veteran's medical records and VA examinations there is evidence of symptoms that include psychosis. Furthermore, while the Veteran did not make it clear in his notice of disagreement dated February 2009 that he was appealing all issues in the January 2009 rating decision, it can be reasonably construed that the Veteran intended on appealing all issues to include the claim for psychosis. The Board finds that the January 2009 rating decision was not final, and a statement of the case addressing the Veteran's claim for service connection for psychosis was never issued. Therefore, the Veteran's claim for service connection for psychosis was never closed. 

The Board finds that the Veteran's claim for other specified trauma and stressor related disorder and depressive disorder includes the Veteran's claim for psychosis. Therefore, the Board concludes that the effective date for service connection relates back to the original claim for psychosis, July 15, 2008

2. Entitlement to an increased disability rating for other specified trauma and stressor disorder and depressive disorder, for the entire appeal period.

Increased Rating

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's schedule for rating disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 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 Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).  

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment).

Mental disorders are rated under 38 C.F.R. § 4.130. The General Rating Formula provides that a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. 

A 70 percent rating will be assigned for 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; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001).

A 100 percent schedular rating contemplates 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. 

The use of the term "such as" in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disability, and the effect of those symptoms on his/her social and work situation. 

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."

In April 2020, the RO issued a rating decision granting an increased disability rating from 30 percent disabling to 50 percent disabling effective March 1, 2019 for other specified trauma and stressor disorder and depressive disorder, claimed as PTSD. The RO referenced a new claim filed in March 1, 2019. Upon review, the Board finds that a claim for increased rating was not filed in March 1, 2019. However, the issue of an increased disability rating is pending as of September 2019.

In August 2018, the RO issued a rating decision. The RO sent the notification letter out in September 2018. The Veteran filed a timely NOD dated September 2019. The Veteran's wife submitted a written affidavit statement dated September 2019 in regard to the Veteran's symptoms and changes since returning from Vietnam. 

In October 2010, the Veteran was afforded a VA examination. The October 2010 VA examiner noted that the Veteran had sleep difficulties every night, decreased memory deficits twice a week of a moderate severity, increased startle response to loud sounds when exposed to these sounds of a moderate severity. The examiner also noted the Veteran had symptoms of desperation and bad thoughts that come to mind. The examiner noted that the Veteran thought about hurting himself two times in the past, but not as of the date of the October 2010 VA examination. The examiner also noted that the Veteran witnessed a friend being killed in combat in Vietnam. The examiner found that the Veteran did have stressors while in Vietnam. The examiner also noted that the Veteran's work was impacted by his mental health symptoms. 

In a September 2013 clinical note, the nurse practitioner indicated that the Veteran needed mental health evaluation and follow up. In a June 2016, nursing note from the Veteran's primary care clinic, indicates that the Veteran had a PTSD screen, where he was asked if he had nightmares, avoided situations, felt on guard or watchful or felt easily startled and the Veteran answered no to all questions. 

In May 2014, the Veteran was afforded another VA examination. The May 2014 examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks during periods of significant stress. The examiner noted that the Veteran's symptoms were controlled by medication. The May 2014 examiner noted that the Veteran was tearful as it related to memories of his military experience. The examiner found that the Veteran's father died while he was in training and he could not leave training to go be with his family. The Veteran's mother died on his birthday, and he was unable to see her and the Veteran had been dealing with this for many years. The Veteran admitted to the May 2014 examiner that he had insomnia and expressed feelings of being unlucky, hopeless, sad, and depressed. The May 2014 examiner noted symptoms of anxiety, depressed mood, mild memory loss such as forgetting names, directions or events; flattened affect; disturbances of motivation and mood. 

In June 2015, the Veteran was afforded another VA examination. The June 2015 examiner noted that the Veteran's symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner noted that the Veteran reported that there was a mortar attack which killed a fellow soldier who was in a tower providing guard. The examiner noted that the Veteran continued to have mild problems in memory but fully functional in instrumental activities of daily living. The examiner noted that the Veteran denied having any thoughts of hurting himself or others. 

In September 2019, the Veteran's wife, who has been married to the Veteran since December 1968 provided an affidavit statement in regard to the Veteran's disability. The Veteran's wife noted that she knew the Veteran prior to him joining the army, and that they were married after his discharge. The Veteran's wife noted that after discharge the Veteran was different. The Veteran's wife noted that he came back a more aggressive person. The Veteran's wife noted that they had a lot of misunderstandings because the Veteran would misinterpret everything she said and would believe she was saying something completely different than what she did say. She also noted that the Veteran was beginning to hear and see things. She noted that he would be sitting and suddenly turn his head because he saw a shadow, but then he would not find anyone. He would ask her if she said anything even when it was quiet. She noted the Veteran told her that someone was talking to him. The Veteran's wife said that she observed the Veteran having long conversations by himself. She noted that he has been paranoid since he returned from his military service and that he thinks his neighbors are spying on him. The Veteran's wife noted that he spends most of his time inside the house. The Veteran's wife also noted that the Veteran has nightmares nightly. She stated he wakes up in fear every 1-2 hours and that she is constantly awakened because of him. The Veteran's wife also noted that she has to repeat and remind the Veteran of things she said because he won't remember what she tells him. The Board finds the Veteran's wife to be competent, credible and her testimony to be highly probative. She has indicated and described the Veteran's symptoms since service and the Board finds she is testifying the symptoms are ongoing to present day.

The Board finds the Veteran's October 2010 and May 2014 VA examinations to be highly probative. The Board does acknowledge the June 2015 VA examination did note that the Veteran did not have any occupational or social impairments. However, viewing the evidence in its totality and considering the evidence of the Veteran's history with trauma and depression the Board finds the June 2015 VA examination to have little probative weight. 

The Board finds the Veteran's wife's written affidavit made in September 2019 to be highly probative. It is a statement most recent in time and thoroughly describes the changes in the Veteran's behavior and the presence of symptoms since service. 

The Veteran's wife has had a first-hand experience viewing the Veteran's symptoms, behavior, and occupational and social impairment. While the VA examination from June 2015 does not support a higher disability rating in this case, the evidence from the October 2010, May 2014, and Veteran's wife's affidavit statement are highly probative and support a finding that the Veteran's symptoms, occupational and social impairment, with deficiencies in areas such as family, judgment, memory, startle response, most closely approximate a 50 percent disability rating. 

The Board concludes that the objective medical evidence and the Veteran's wife's affidavit statement regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 50 percent rating for the entire appeal period, but not higher. See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating.

TDIU

3. Entitlement to a TDIU

The Veteran contends that he is entitled to a TDIU given the severity of his service-connected disabilities.

Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability."  See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19.  

Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, a total rating may nonetheless be granted on an extraschedular basis in exceptional cases (and pursuant to specifically prescribed procedures) when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. See 38 C.F.R. § 4.16 (b).

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Through this the period on appeal, the Veteran is service connected for a number of disabilities. As of April 2020, the Veteran had a combined rating of 90 percent effective March 1, 2019.  Thus, the Veteran meets the schedular requirements for entitlement to a TDIU. 

The Veteran applied for increased compensation based on unemployability VA Form 21-8940 in April 2020. The Veteran indicated that his last employment was in 2006 as a Construction worker, doing masonry. Throughout the Veteran's medical records and the claims file there is no evidence of employment at or around the time of his application for TDIU. The Board finds that TDIU has been raised under Rice and the evidence of record reflects that the Veteran has not been gainfully employed throughout the appellate period. The Board also finds that the Veteran's combined disability rating of 90 percent meets the schedular requirements under 38 C.F.R. § 4.16(a). Therefore, the Board finds that the Veteran is entitled to TDIU.

 

 

Sadia Sorathia

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Hellina Y. Hailu, 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.