Citation Nr: 21030304 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 19-37 910 DATE: May 18, 2021 ORDER Entitlement to an effective date of service connection prior to May 25, 2017, for posttraumatic stress disorder is denied. Entitlement to an initial evaluation of 50 percent for posttraumatic stress disorder (PTSD) is granted. Entitlement to an evaluation in excess of 50 percent from November 12, 2020, for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. VA did not receive a compensation claim or an intent to file application for PTSD (or any psychiatric disorder) prior to May 25, 2017. 2. From May 25, 2017, the Veteran's PTSD has manifested in symptoms such as anxiety, depressed mood, chronic sleep impairment, disturbances of motivation and mood, irritability (not resulting in violence), impaired judgement, panic attacks weekly or less often, impaired concentration, and difficulty in establishing and maintaining effective work and social relationships, all resulting in occupational and social impairment with reduced reliability and productivity. 3. From November 12, 2020, the Veteran's PTSD has manifested in symptoms such as anxiety, depressed mood, chronic sleep impairment, disturbances of motivation and mood, irritability (not resulting in violence), impaired judgement, panic attacks weekly or less often, impaired concentration, and difficulty in establishing and maintaining effective work and social relationships, all resulting in occupational and social impairment with reduced reliability and productivity. 4. The service-connected disabilities do not preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The criteria for an effective date of service connection prior to May 25, 2017, for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an initial evaluation of 50 percent for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an evaluation in excess of 50 percent from November 12, 2020, for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been satisfied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1965 to July 1969. During the course of the appeal, the Veteran filed a VA Form 21-8940 Application for a TDIU indicating that he was unemployable in part due to his PTSD. As a result, the issue of TDIU is raised by the record and part and parcel to the increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an effective date of service connection prior to May 25, 2017, for posttraumatic stress disorder The Veteran is seeking an effective date earlier than May 25, 2017, for the grant of service connection for PTSD. The general rule regarding effective dates is found at 38 U.S.C. § 5110 (a). The Board notes that the rule has recently changed to in accordance with the Appeals Modernization Act. Previously, the rule was as follows: Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. It now reads as: Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Importantly, the change in the law or language of the statute does not change the outcome of this decision. The Board will analyze the Veteran's claim under the old law, as this is a legacy appeal. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,600 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. Under the law prior to the amendment, a claim was 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). An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155 (a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Effective September 25, 2014, if a veteran submits an intent to file application, the veteran must submit a complete application form prescribed by the Secretary within one year of the submission of the intent to file application. 38 C.F.R. § 3.155 (b). Only by doing so can a veteran preserve the effective date of the submission of the intent to file application. Id. The record contains a May 25, 2017 VA letter indicating receipt of a May 25, 2017 intent to file application. The actual intent to file application is not of record, but the RO granted the effective date based upon this letter. A review of the record does not indicate a formal compensation claim prior to May 25, 2017, an informal compensation claim prior to March 24, 2015, or an intent to file application prior to May 25, 2017. Notably, the Veteran did not file this claim within one year of separation, so 38 U.S.C. § 5110 (b)(1) is inapplicable. No other potential exceptions to the general rule of section 5110 are applicable. As a result, an effective date prior to May 25, 2017 is not warranted, as this is the date of receipt of the intent to file application and the Veteran submitted a formal claim within one year. 38 U.S.C. § 5110 (a). Under the applicable laws and regulations, the Board is unable to grant an earlier effective date for service connection. The Board is sympathetic to the Veteran's assertion that he has suffered with PTSD for years prior to May 25, 2017. However, the Board is bound by the statutes enacted by Congress and as a result of their application, must find that an earlier effective date must be denied. 2. Entitlement to an initial evaluation of 50 percent for posttraumatic stress disorder (PTSD) 3. Entitlement to an evaluation in excess of 50 percent from November 12, 2020, for posttraumatic stress disorder (PTSD) Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). As explained below, the Board has determined that a uniform 50 percent evaluation is appropriate for the entire period on appeal. The Veteran's PTSD is currently assigned an initial 30 percent evaluation under Diagnostic Code 9411, effective May 25, 2017, and a 50 percent evaluation, effective November 12, 2020. The Veteran has challenged the initial evaluation. Diagnostic Code 9411 pertains specifically to the primary diagnosed disability in the Veteran's case (PTSD). In any event, with the exception of eating disorders, all mental disorders including PTSD are rated under the same criteria in the rating schedule. Therefore, rating under another diagnostic code would not produce a different result. Moreover, the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. The criteria for a 30 percent rating are as follows: Occupational and social impairment with an 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; and mild memory loss (such as forgetting names, directions, and recent events). The criteria for a 50 percent rating are as follows: 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; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are as follows: 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are as follows: 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, Diagnostic Code 9411. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. Pursuant to relevant law and regulation, the DSM-5 applies to this appeal. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Thus, the Board will not use previously recorded GAF scores to determine the appropriate evaluation for the Veteran's PTSD. Golden v. Shulkin, 29 Vet. App. 221 (2018). A Vet Center social worker submitted a February 7, 2018 letter addressing the Veteran's symptoms. He reports that the Veteran experiences "difficulties with stress and disturbances, which cause clinically significant impairment in social, occupational and other important areas of functioning...." The social worker reports recurrent and intrusive recollections, feelings of detachment and estrangement, irritability, sleep impairment, impaired concentration, hypervigilance, and occasional "mild" panic attacks. The social worker then notes that that Veteran experiences occupational and social impairment due to gross impairment in thought processes or communication, persistent delusions and hallucinations, grossly inappropriate behavior, danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives or own occupational status. A VA psychiatrist, documented in VA treatment records as being the Veteran's treating psychiatrist, submitted a February 27, 2018 letter documenting the Veteran's reports of chronic insomnia, irritability, irrational suspiciousness, frequent nightmares, avoidance of reminders of Vietnam service, impaired concentration, and isolative behaviors. At a July 2018 VA psychiatric examination, the examiner concluded that the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms, generally consistent with the rating criteria for a 10 percent evaluation. Documented symptoms were depressed mood and chronic sleep impairment. The Veteran presented with euthymic mood and congruent affect. He was polite, oriented to all spheres, well-groomed, and dressed appropriately. Speech was normal, thought process was fluid, he was alert and attentive. He denied suicidal ideation, homicidal ideation, and hallucinations. The examiner determined that the Veteran did not pose a threat to himself or others. The Veteran reported having a relationship with his son and spending many days at the VFW and attending meetings weekly. The Veteran's wife submitted a September 2018 letter asserting that the Veteran has had a markedly decreased interest in hobbies and other life interests. He spends large periods of the day sitting in a chair watching TV. He has limited interactions with family members, has no close friendships, has difficulty concentrating, and his PTSD prevents him "from living his fullest life." She also indicates that the Veteran has not fully opened up to VA examiners and his treating VA psychiatrist (author of the February 2018 letter). At a November 2018 VA examination, the examiner concluded that the Veteran's symptoms resulted in occupational and social impairment due to mild or transient symptoms, generally consistent with the rating criteria for a 10 percent evaluation. Documented symptoms were depressed mood, anxiety, and chronic sleep impairment. The examiner noted that the Veteran was appropriately dressed, well-groomed, and oriented to all spheres. He denied homicidal or suicidal ideation, affect was stable, speech was normal, insight and judgment were sound, and memory was intact. The Veteran submitted an October 2020 Disability Benefits Questionnaire completed by a private psychiatrist. Reported symptoms were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, gross impairment in thought processes or communication, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, persistent delusions or hallucinations, and persistent danger of hurting self or others. The examiner provided additional commentary on the Veteran's PTSD, including a review of the relevant treatment records and examinations. The examiner determined that the Veteran's PTSD "would prevent him from being able to effectively complete work-related tasks" and render him "unable to tolerate average workplace stressors." The examiner concluded that the Veteran's PTSD resulted in occupational and social impairment with deficiencies in most areas. In an accompanying Residual Functional Capacity Evaluation, the examiner notes that due to PTSD the Veteran would miss two days of work per month, would need to leave work early two days per month, would have trouble concentrating more than three times per month for at least seven hours in an eight hour workday, and if subjected to normal pressures of a job the Veteran more than once a month would respond in an angry manner but would not actually become violent. A private physician submitted an October 12, 2020, letter. After a consultation with the Veteran, the physician reported sleep impairment, nightmares, and anxiety. The Veteran was depressed with little motivation. At a February 2021 VA psychiatric examination, documented symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, speech intermittently illogical, obscure, or irrelevant, and disturbances of motivation and mood. The examiner noted that the Veteran was very cooperative, oriented to all spheres, did not manifest any signs of a formal though disorder, denied homicidal or suicidal ideations, affect was stable, speech was normal, memory was intact, and insight and judgement were sound. The examiner noted that the Veteran and his wife had been married for 50 years and have a strong marriage. The examiner "could identify no functional limitations in the interpersonal, emotional, or cognitive realms that would interfere with [the Veteran's] ability to function in an occupational setting. He has...been retired from the post office since 2000." A review of VA treatment records throughout the period on appeal finds symptoms consistent with the VA examinations. Many of the Veteran's psychiatric treatment notes were signed by the VA psychiatrist that submitted the February 2018 letter. Documented symptoms include nightmares, night sweats, isolative behavior, avoidance of crowds/war movies, emotional numbness, anhedonia, poor sleep, irritability, and hypervigilance. In a February 2019 treatment note, the Veteran reported that he "believes he can be loud and argumentative" but denied physical violence. In a subsequent February 2019 treatment note he reported that he began working part-time in maintenance "to give me something to do." A March 2019 psychiatry attending note indicates complaints of "occasional word-finding difficulty." A February 2020 psychiatric note documents the Veteran's report that he and his wife will "have words" and "get loud" but that there is no physical confrontation. There are no apparent references to either suicidal or homicidal ideation in VA treatment records. After a review of the medical and lay evidence of record, an evaluation of 50 percent is warranted for the entire period on appeal. An evaluation in excess of 50 percent is not warranted for any period on appeal. The evidence suggests that the Veteran's symptomatology has more nearly approximated occupational and social impairment associated with a 50 percent disability rating for the entire period on appeal. In other words, the Board finds that the preponderance of the evidence is against an evaluation in excess of 50 percent. Neither the lay nor the medical evidence of record more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 70 percent disability evaluation, nor does it demonstrate deficiencies in most areas. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. The Board has considered the VA treatment records, including all VA examination reports, the private psychological assessments, and lay statements regarding the impact of the Veteran's PTSD on his occupational and social impairment. During the entire period, the Veteran reported recurrent and distressing recollections and dreams of the events; anxiety; avoidance efforts; depressed mood; disturbances of mood and motivation; sleep impairment; panic attacks weekly or less often; irritability without violence; and difficulty with social relationships, among other symptoms. It is documented that the Veteran has struggled with social interactions and tends to isolate himself. However, he maintains a strong relationship with his wife and spends at least some time at the VFW and attending weekly meetings. There is no evidence of an inability to establish and maintain effective relationships. The Board finds that the degree to which the Veteran's PTSD inhibits his social relationships is consistent with the criteria of a 50 percent evaluation. Most notable are the Veteran's reported symptoms of irritability, hypervigilance, difficulty concentrating, and recent reports of gross impairment in thought process or communication, persistent delusions or hallucinations, and persistent danger of hurting self or others. There is no evidence that the Veteran's irritability has resulted in violence or that his hypervigilance has interfered with routine activities. While the October 2020 private examiner indicates that the Veteran is a persistent danger to others, in the accompanying Residual Functional Capacity Evaluation she indicates that he would not actually become violent in the workspace. Furthermore, there is no reference to physical violence, suicidal ideation, or homicidal ideation in any VA examination report, VA treatment record, or additional evidence submitted by the Veteran. There is no indication of violence or obsessional rituals interfering with routine activities. The Board notes the February 2018 letter from the Vet Center Social Worker listing gross impairment in thought processes or communication, persistent delusions and hallucinations, grossly inappropriate behavior, danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives or own occupational status. However, this is in direct contradiction to the February 2018 letter provided by the Veteran's treating psychiatrist. In addition, there is no indication of near continuous panic or depression affecting the Veteran's ability to function independently. To the extent that the Veteran has difficulty concentrating, the preponderance of the evidence suggests that there is not abnormal speech or disorientation. The Board notes the single reference to "difficulty finding words" in VA treatment records, but additional medical evidence makes clear that there is not intermittent illogical, obscure, or irrelevant speech. Furthermore, the objective medical conclusions of the VA examiners with respect to the severity of the Veteran's occupational and social impairment, while not determinative, are not consistent with occupational and social impairment with deficiencies in most areas. The Board notes the conclusion of the October 2020 private examiner, but again notes that it is not determinative in assessing the occupational and social impairment of the Veteran's PTSD. In this instance, the Board finds the report of the private examiner to be less probative as it contradicts the findings of all three VA examination reports and it is inconsistent with the symptoms reported in VA treatment records and the letter by the Veteran's treating VA psychiatrist. It is assumed in this instance that the Veteran's VA psychiatrist and author of the February 27, 2018 has the most complete understanding of the Veteran's PTSD symptoms due to her consistent evaluation of the Veteran during the period on appeal. Her findings are inconsistent with those of the October 2020 private examiner and the February 2018 social worker. To be more precise, the Board finds the statements of the social worker and the 2020 examiner to be wildly inconsistent with the more credible evidence and that such opinions are not credible or probative as to the manifestations. The preponderance of the evidence indicates that there are no obsessional rituals, abnormal speech, near-continues panic or depression, impaired impulse control (such as unprovoked irritability with periods of violence), spatial disorientation, or neglect of personal appearance or hygiene to the extent contemplated under the 70 percent rating criteria. Thus, the Board finds that the Veteran does not have occupational and social impairment, with deficiencies in most areas at any time during the period on appeal. He does have some deficiencies, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 50 percent rating assigned herein. Furthermore, even resolving any reasonable doubt in the Veteran's favor, the Board finds that he does not meet the requirements for an evaluation greater than the now assigned 50 percent schedular rating. To the extent that the Veteran has any of the criteria for a 70 percent rating or a 100 percent evaluation, see Mauerhan, 16 Vet. App. at 442, the Board concludes that his overall level of disability does not exceed the criteria for a 50 percent rating. This is consistent with VA's determination to handle cases affected by change in medical findings or diagnosis so as to produce the greatest degree of stability of disability evaluations consistent with the laws and regulations governing disability compensation and pension. See 38 C.F.R. § 3.344 (a). 4. Entitlement to a total disability rating based on individual unemployability (TDIU) Total disability ratings for compensation based upon individual unemployability 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 a result of a single service-connected disability ratable at 60 percent or more or, as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is currently in receipt of service connection for PTSD rated at 50 percent, and right knee, degenerative arthritis, rated at 10 percent. His combined rating is 60 percent. Accordingly, he does not meet the threshold schedular criteria for TDIU under 38 C.F.R. § 4.16 (a). The key determination, then, is whether the Veteran is unable to obtain and retain substantially gainful employment. In evaluating entitlement to a TDIU, the central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In a September 2020 VA Form 21-8940 Application for a TDIU, the Veteran indicates that he last worked as a truck driver for the US Postal Service in December 2001. He indicates that he left this job due to his disabilities and that he has not attempted to obtain employment since becoming too disabled to work. The Veteran has a high school education with one year of college education. As documented above, throughout the course of the period on appeal VA examiners have determined that the Veteran is not unemployable due to his service-connected PTSD. The assertions of the private examiner and the VA social worker are in contradiction to the VA examination reports and the VA treatment records. In addition, the February 2019 treatment note documenting the Veteran's report of working part-time maintenance is seemingly inconsistent with the Veteran's assertion that his service-connected PTSD and right knee disorder prevent him from working. In noting this, the Board is aware that part-time work does not by itself indicate the ability to maintain substantially gainful employment. However, it is inconsistent with the assertion that the Veteran is unable to work. The Veteran's most recent right knee examination was afforded in November 2020. The examiner's range of motion was limited to 90 degrees of flexion with pain on movement. He was not able to go into a squatting position. The examiner concluded that there would be functional impairment as the Veteran "could have problems in an occupational setting performing any type of strenuous physical work such as heavy lifting, prolonged standing, prolonged walking, or stair climbing. The Veteran can tolerate other types of work...." The Veteran is not shown to be unable to obtain and retain substantially gainful employment due to service-connected disabilities. While the service-connected PTSD and right knee disorders have an impact upon his earning capacity, accounted for by the Schedular evaluations assigned, he is not shown to be unable to secure and follow substantially gainful employment due to them. The preponderance of credible evidence does not suggest that the Veteran's service-connected disabilities render him incapable of securing substantially gainful employment. We again note that some of the evidence submitted in support of the claim are wildly inconsistent with the more credible and probative evidence. While the Board acknowledges that his service-connected disabilities have an impact on his physical and mental capabilities, they do not prevent him from working with or under the supervision of others, interacting with the public, or in an occupation that does not require significant physical activity. In essence, service-connected disabilities do not result in an inability to obtain or retain substantially gainful employment. The preponderance of evidence is against the claim; there is no doubt to be resolved. Hence referral for extraschedular TDIU under 38 C.F.R. § 4.16 (b), is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.