Citation Nr: 21028287 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 13-13 368 DATE: May 10, 2021 ORDER Revision, based on clear and unmistakable error (CUE), in July 2005 decision that denied service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than August 9, 2010, for the service connection of PTSD is denied. Entitlement to a rating in excess of 70 percent for PTSD from August 9, 2010 to October 9, 2018 is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) from August 9, 2010 to October 9, 2018 is granted. FINDINGS OF FACT 1. The Veteran's claim of service connection for PTSD was denied in a July 2005 rating decision that became final because he did not submit a notice of disagreement. 2. The correct facts, as known at the time, were before the VA adjudicators in July 2005 and the statutory and regulatory provisions extant at the time were correctly applied. 3. The Veteran filed to reopen his claim of service connection for PTSD on August 9, 2010. 4. The Veteran's PTSD worsened in October 2018 resulting in total occupational and social impairment. However, prior to that he did not experience total social impairment. 5. From August 9, 2010 to October 9, 2018, the Veteran's PTSD resulted in his inability to obtain and maintain employment. As of October 10, 2018, he received a 100 percent rating for his PTSD and the residuals of his shrapnel wound scar alone do not result in his inability to obtain and maintain employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of a July 2005 rating decision on the basis of CUE pursuant to 38 C.F.R. § 3.105 have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 2. The criteria for effective date earlier than August 9, 2010, for service connection of PTSD have not been met. 38 U.S.C. § 7104; 38 C.F.R. §3.400. 3. The criteria for a disability rating in excess of 70 percent for PTSD from August 9, 2010 to October 9, 2018 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 4. The criteria for entitlement to a total disability rating due to individual unemployability (TDIU) based on PTSD have been met From August 9, 2010 to October 9, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1968 to February 1970, with combat service in Vietnam. He is the recipient of a Purple Heart Medal, Bronze Star with "V" device, and a Vietnam Campaign Medal with device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran presented sworn testimony at a hearing before Veterans Law Judge (VLJ) Copeland in September 2016. In November 2020, a letter was sent to the Veteran notifying him that VLJ Copeland is unable to decide his case because she is no longer employed by the Board. CUE The Veteran seeks revision of the July 2005 rating decision based on CUE. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). Here, the July 2005 rating decision became final because the Veteran did not file a notice of disagreement (NOD). Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error" It is the kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error." Fugo v. Brown, 6. Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. At 44. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated[;]" and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time the decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 F. App'x 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F. 3d 1328 (Fed. Cir. 1999). A manifest change in outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. At 442. As a threshold matter, the Board finds the argument advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claims. Veteran's Contentions The Veteran contends that revision based on CUE is warranted because he is a combat veteran and records show he had a PTSD diagnosis as early as 2005. The July 2005 rating decision denied service connection for PTSD. In doing so, the RO concluded that the Veteran did not have a confirmed diagnosis of PTSD that met all the diagnostic criteria. The RO highlighted that the Veteran had VA treatment records showing in-patient psychiatric treatment for alcohol and nicotine dependence and PTSD. During the June 2005 VA examination, the Veteran reported a history of alcohol dependence, detachment/estrangement from others, irritability, outbursts of anger, mild sleep impairment with mild onset, insomnia, and occasional suicidal thoughts with no plans. The June 2005 VA examiner concluded that the VA examiner did not met the full criteria for PTSD and reported that the Axis I diagnosis was alcohol dependence in early partial remission. The RO noted the VA examiner's conclusions that the Veteran's quality of life was affected more by alcohol dependence than by combat stressors. Analysis The Board finds that revision based on CUE is not warranted. The evidence during 2005 showed unequivocally that the Veteran engaged in combat in Vietnam. The July 2005 rating decision and June 2005 VA examination accepted his statements of in-service stressor in the evaluation of his psychiatric state. In the June 2005 VA examination, the VA examiner specifically found that the Veteran meets the criterion for PTSD stressor. Nonetheless, the RO denied service connection in July 2005 because the Veteran did not have a confirmed diagnosis of PTSD. The June 2005 VA examiner noted the history of the Veteran's psychiatric symptoms, including recent in-patient hospitalization due to alcohol dependence and PTSD. The March 2005 VA treatment records from the in-patient hospitalization show the Veteran was diagnosed with alcohol dependence, nicotine dependence, PTSD in Axis I, Axis II was noted as deferred, Axis III was hearing loss, hypertension, unspecified back pain, Axis IV was noted as severe, Axis V is 65. The June 2005 VA examiner noted the history of the Veteran's previous psychological treatment, but ultimately found that the Veteran did not meet the diagnostic criteria of the DSM IV for PTSD. He listed the Axis I diagnosis as alcohol dependence with Axis II and III listed as deferred, Axis IV listed psychosocial stressors legal problems. Ultimately, the RO denied service connection based on the June 2005 VA examiner's conclusions that the Veteran did not have PTSD. At the time of the July 2005 rating decision, 38 C.F.R. §3.304(F), in part, provided the following: (f) Post-traumatic stress disorder. Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Although service connection may be established based on other in-service stressors, the following provisions apply for specified in-service stressors as set forth below: (1) If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. At the time of the July 2005 rating decision, 38 C.F.R. § 4.125 provided that (a) If the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. (b) If the diagnosis of a mental disorder is changed, the rating agency shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. If it is not clear from the available records what the change of diagnosis represents, the rating agency shall return the report to the examiner for a determination. Here, the issue is not whether the Veteran had a credible stressor. Both the VA examinations and the RO's July 2005 rating decision accepted as true the occurrence of the Veteran's stressor based on his lay statements. Instead, the evidence did not show that the Veteran definitively had a PTSD diagnosis that conformed with the provisions of 38 C.F.R. § 4.125. This is especially true given conflicting information regarding his diagnosis. A VA treatment record indicated a diagnosis of PTSD, while the June 2005 VA examiner found that the Veteran did not experience all of the necessary symptoms in order to meet the criteria for a PTSD diagnosis under the DSM-IV. As a result, it is not clearly and unmistakably erroneous for the RO to conclude that the June 2005 VA examination was most probative and as a result that the Veteran did not have a PTSD diagnosis. The Board notes that here the Veteran's argument that he was diagnosed with PTSD, meeting the criteria for the DSM-IV and had a confirmed diagnosis as required by 4.125 is essentially a disagreement as to how the facts were weighed or evaluated by the adjudicator. This is because there is a reasonable basis for the RO to conclude that the Veteran did not meet the criteria for a PTSD diagnosis. However, "[i]t is the prerogative of the factfinder . . . to interpret the evidence and draw reasonable inferences from it." Evans, 27 Vet. App. at 187 (citing Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990)). A disagreement as to how the facts were weighed does not support a finding of CUE. Fugo, 6 Vet. App. at 43-44. Thus, the Board finds revision based on CUE is not warranted. Earlier Effective Date The Veteran seeks an earlier effective date for the grant of service connection for PTSD. Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). Prior to March 24, 2015, for VA compensation purposes, a "claim" is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). 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 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 filed a formal claim of service connection for PTSD on August 9, 2010. See August 2010 VA 21-526. Following this, the RO granted the Veteran's claim of service connection for PTSD in a June 2011 rating decision. Here, the RO assigned the earliest possible effective date for its grant of the reopened claims, which was received by VA on August 9, 2010. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Thus, under the law, there is no basis to assign an earlier effective date for service connection. PTSD increase The Veteran seeks an increased rating for his PTSD. He currently receives a 100 percent rating under DC 9411 as of October 10, 2018. As a result, the period after October 10, 2018 is not on appeal. However, the Veteran challenged his initial rating he received. As a result, the period from August 9, 2010 to October 9, 2018 is currently on appeal. During this time period, the Veteran received a 70 percent rating for his PTSD under DC 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The Board finds that a rating of 100 percent prior to October 9, 2018 is not warranted. This is because although there is evidence suggesting the Veteran has some occupational and social impairment, the evidence shows that he does not have total social impairment as required for a 100 percent rating. VA examinations and treatment records prior to October 9, 2018 show the Veteran experienced the intermittent inability to perform activities of daily living but was able to provide self-care. He also experienced suicidal ideation, speech that was intermittently irrelevant, and near continuous dysphoria affecting ability to function independently, appropriately, and effectively. He also had impaired impulse control, neglect of personal appearance and hygiene, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, but he did not have any difficulty understanding commands. See June 2011 C&P exam. The medical provider indicated that the Veteran had deficiencies in most areas. At the September 2016 Board hearing, the Veteran reports he does not speak to his family and did not go to the funeral of his dad or sister. His romantic relationships are typically short lived, lasting no more than a year or two. He has difficulty getting up and organized in the morning. He reports that he last worked in 2007, but ultimately left that job due to difficulty with his service-connected disabilities. At this time, he reported having a relationship with three marines and an army buddy who he spends time with. It is clear from the evidence of record, that the Veteran's PTSD results in significant occupational and social impairment. He reports little contact with his family and has not worked since 2007. Still, there is evidence that during this time period, the Veteran is not totally socially impaired. Notably, he still maintained regular contact and friendship with several marine and army buddy friends. As a result, the Veteran is not totally socially impaired. Thus, a rating of 100 percent is not warranted. There was a noticeable worsening of symptoms and impairment at the October 2018 VA examination. Ultimately, the October 2018 VA examiner opined that the Veteran's PTSD, at that time, resulted in total occupational and social impairment. However, the evidence prior to that time does not support that the Veteran's psychiatric disability resulted in total occupational and social impairment. As a result, a rating in excess of 70 percent is denied. TDIU The Veteran reports that his service-connected disabilities resulted in his inability to obtain and maintain employment. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran receives a 70 percent rating for his PTSD from August 9, 2010 to October 9, 2018 and a 20 percent for scars related to a shell fragment wound since February 21, 1970. As of October 10, 2018, he receives a 100 percent for his PTSD. As a result, the Veteran meets schedular requirements for a TDIU. The Veteran has a degree in business administration and 30 years of management and supervisory experience. He reports that he last worked in the construction in 2007. See September 2016 Hr'g Tr. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's PTSD prevented him from securing and following substantially gainful employment from August 9, 2010 to October 9, 2018. August 9, 2010, is the date the Veteran was service connected for his PTSD disability and the date the appeal period begins. After this time period, a TDIU was not warranted because the evidence does not support that the Veteran's scar alone results in his inability to obtain and maintain employment alone. Namely, the record shows that the majority of the Veteran's occupational impairment is related to his psychiatric disability. This is especially true in light of his extensive history in management and supervisory experience. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the limitations imposed by the Veteran's PTSD, the Veteran is unable to perform jobs consistent with his managerial and supervisory history. His service-connected PTSD further limits his ability to function in a work like setting. His PTSD results in disturbances in mood and motivation, difficulty establishing and maintaining effective relationships, including those in a work-like setting, and has difficulty adapting to stressful situations. See June 2011 and October 2018 VA examination. At his Board hearing, the Veteran also reported that he left his last job because of his service-connected disabilities. He has difficulty with the organization and necessary skills to remain employed. Notably, the evidence also shows that the Veteran has difficulty performing basic daily activities and at a times struggles with appearance and hygiene issues. His near continuous dysphoria affected his ability to function independently, further limiting his ability to obtain and maintain employment consistent with his managerial and supervisory occupational history. Based on his specific occupational history, the Veteran was unable to obtain and maintain employment from August 9, 2010 to October 9, 2018. Thus, a TDIU is warranted. K. ANDERSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.