Citation Nr: 21032185 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 20-20 387 DATE: May 26, 2021 ORDER Entitlement to a 70 percent rating for posttraumatic stress disorder (PTSD) is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an earlier effective date of November 4, 2015, for the grant of service connection for PTSD is granted. Entitlement to an earlier effective date of November 4, 2015, for aid and attendance for the Veteran's spouse K. K. is granted. Entitlement to a total disability based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD manifested occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. 2. The Veteran submitted an intent to file a claim for service connection for an acquired psychiatric disability on November 4, 2015. That claim was denied in an August 2016 rating decision. 3. Following the August 2016 rating decision denying service connection for an acquired psychiatric disorder claim, new and material evidence, to include additional pertinent medical records, were added to the Veteran's file within one year of that decision. Thus, the August 2016 rating decision was not final. 4. The Veteran was granted a rating in excess of 30 percent in an October 2017 rating decision. He had no other compensable disability ratings prior to the October 2017 rating decision. 5. Prior to the October 2017 rating decision granting PTSD, the Veteran submitted February 2017 medical records in June 2017 documenting that he took care of his paraplegic wife; in January 2018 the Veteran filed a claim for aid and attendance for his spouse who was wheelchair bound. 6. The Veteran's service-connected disabilities preclude him from obtaining and engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.7, 4.124(a), 4.130, Diagnostic Code (DC) 9411. 2. The criteria for to an effective date of November 4, 2015, for the grant of service connection for PTSD have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date of November 4, 2015, for aid and attendance for the Veteran's spouse have been met. 38 C.F.R. § 3.400(o), 3.401(a)(3). 4. The criteria for entitlement to TDIU have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1978 to February 1983. 1. Entitlement to a rating greater than 50 percent PTSD 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. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing psychiatric disorders under the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130 provides assigning a 50 percent rating when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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 when symptoms such 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 cause total occupational and social impairment. 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 symptoms listed are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 (Fed. Cir. 2013). Service connection was granted and an initial 50 percent rating assigned for PTSD, effective December 21, 2016. See February 2018 rating decision. The Veteran disagreed with that rating and contends that his PTSD warrants a higher evaluation. A December 2013 private examination (submitted in June 2017) documented that the Veteran's diagnosed PTSD caused intrusive thoughts and nightmares, hypervigilance, isolates from crowds, anxiety, and not paying attention to tasks at hand (i.e. daydreaming while driving and missing turns). February 2017 medical treatment records document that the Veteran suffered from severe anxiety and PTSD. The Veteran was given a VA examination in October 2017. The examiner characterized the Veteran's PTSD as resulting in occupational and social impairment with reduced reliability and productivity. The specific symptoms endorsed by the Veteran were depressed mood; anxiety, suspiciousness, chronic sleep impairment, disturbances in motivation/mood; difficulty in establishing maintaining work and social relationships; difficulty in adapting to stressful circumstances including work or a work like setting. During the examination, the examiner found the Veteran to be alert and oriented to person, place, time, situation. He is well-groomed and dressed in casual attire and demonstrated fair eye contact with normal speech. The Veteran's thoughts were linear, logical and goal directed. There was no psychomotor agitation or retardation. The Veteran did not report any delusions and suicidal or homicidal ideations, nor any obsessions, compulsions, or phobias. His mood was "tense," and his affect was congruent. The Veteran denied current auditory or visual hallucinations. His insight and judgment were fair. And his cognitive function was alert and memory were grossly intact. In June 2020 the Veteran submitted a private opinion discussing the Veteran's diagnosed PTSD. The examiner provided a detailed history pertaining to the events leading up to the Veteran's PTSD diagnosis. The examiner also reported the Veteran's mental status examination. The Veteran was cooperative and appropriate with good impulse control. His speech was decreased in rate tone and volume without significant inflection during emotional discussions and he did not display evidence of significant agitation. The Veteran had intermittent suicidal ideation with plan or intent. Additionally, the Veteran stated he was not homicidal but had frequently thought of hurting and killing other individuals whom he was angry with or he thought they would harm him. The Veteran's thought process was linear and logical. There was no evidence of flight of ideas or looseness of associations. The Veteran did not endorse any perceptual alterations such as auditory, visual, or tactile hallucinations. The Veteran was cognitively intact. The Veteran was given VA examination in July 2020. The examiner opined that the Veteran's psychiatric condition did not meet the criteria of PTSD and diagnosed major depressive disorder. The examiner characterized the Veteran's depressive disorder as resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The specific symptoms endorsed by the Veteran were depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; impaired judgment; disturbances in motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence. During the examination, the examiner's reported observations of the Veteran were that he was alert, fully oriented, cooperative, polite with good eye contact, clear speech, and clean appearance. The Veteran's mood was self-described as anxious and depressed. The Veteran presented as mostly euthymic with a congruent affect and nonlabile. His thought process and content were free of hallucinations and delusions and his judgment, insight, intellect, memory, and perception were intact. The Veteran did not have any homicidal ideations, plans, or intent. He did describe vague, passive suicidal ideation with no intent or plan. The examiner opined that the Veteran did not have a PTSD diagnosis because his job in the U.S. Navy was to reclaim aircraft parts for reuse and not rescue or reclamation of crash victims. The examiner also opined that the previous examiners and mental health providers who diagnosed the Veteran with PTSD did so in error on reliance of the Veteran's self-reporting of his duties during service. In May 2021, the Veteran's representative submitted a statement and also submitted an addendum private opinion. The statement discussed the flaws with the July 2020 VA examiner's opinion that the Veteran was not involved in aircraft crash victim's recovery during active service and change in diagnosis. The statement specifically addressed that the Veteran's credibility or veracity was never questioned previously and is without cause. The private medical opinion provided a detailed reason as to why the Veteran's PTSD should remain as his current diagnosis with supporting rationale and symptoms manifested by the Veteran even prior to receiving service-connection for PTSD. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the effects contemplated by a 70 percent rating. The symptoms are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The Veteran has exhibited suicidal ideation but that he is not a persistent danger of hurting self or others. See Bankhead, 29 Vet. App. at 10. The record also includes reports of depression affecting his ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); difficulty in adapting to stressful circumstances (including work or work like setting); inability to establish and maintain effective relationships. The Veteran's other symptoms are contemplated by a 50 percent rating, such as, avoiding crowds, feelings of hopelessness and hypervigilance, are similar to disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The Board finds that a rating in excess of 70 percent is not warranted. At no time during the period on appeal has the Veteran's PTSD symptoms manifested the criteria for a 100 percent rating. There is no evidence that the Veteran's psychiatric disability results in total occupational and social impairment and there was no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself 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, or his own name. The Board acknowledges the Veteran's statements regarding his PTSD and depression symptoms. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of his psychiatric disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective observations. In summary, the competent and probative evidence of record supports a rating of 70 percent, but no higher for the Veteran's PTSD. 2. Entitlement to an effective date earlier than December 21, 2016, for PTSD The Veteran seeks an earlier effective date for the grant of service connection for PTSD. Following a review of the pertinent evidence of record, the Board finds that assignment of an effective date of November 4, 2015 for grant of service connection for PTSD, is warranted. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400, 38 C.F.R. § 3.2500(c). The effective date of an award of disability compensation for claims to reopen is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that "[a]ny communication or action, indicating an intention to apply for one or more benefits... [s]uch informal claim must identify the benefit sought." 38 C.F.R. § 3.155 (a) (2014). VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection will be the date of the informal claim. 38 C.F.R. § 3.155. Effective March 24, 2015, the law no longer allows for informal claims and the pertinent regulation allows a claimant to submit intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155. A review of the record reveals that in August 2013, the Veteran submitted an intent to file a claim. Subsequently, VA sent the Veteran notice in August 2013 that he must submit an application enclosed with that notice to begin processing his claim. The Veteran did not submit any claim within one-year following his August 2013 intent to file. On November 4, 2015, the Veteran submitted an intent to file a claim. The Veteran then submitted a claim for service-connection for an acquired psychiatric disorder in November 2015. The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim in an August 2016 rating decision. The Veteran submitted another intent to file on December 21, 2016. He then submitted a claim for PTSD in June 2017. Additionally, in June 2017, the Veteran submitted treatment records from February 2017 that show he had severe anxiety and PTSD. In June 2017, the Veteran submitted also submitted a private mental health examination diagnosing the Veteran with PTSD in December 2013, that was not previously a part of the record. In a October 2017 rating decision, the Veteran was granted service-connection for PTSD effective December 21, 2017. The Board finds that an effective date of November 4, 2015 is warranted. November 4, 2015 represents the date when the Veteran submitted his intent to file for an acquired psychiatric condition. The initial August 2016 rating decision denying that claim was not final as new and material evidence was submitted during the appeal period, to include treatment records and a private examination within one year of the August 2016 rating decision. 38 C.F.R. § 3.156 (b). Therefore, the Veteran is entitled to an earlier effective date of November 4, 2015, the date his intent to file was submitted. Since no application for benefits was received within in a year following the August 2013 intent to file, the earliest effective date that can be awarded is the November 4, 2015 intent to file where an application of benefits was received within one year. Accordingly, an effective date of November 4, 2015, for the grant of service connection for PTSD is granted. 3. Entitlement to an effective date earlier than January 23, 2018, for aid and attendance for the Veteran's spouse Aid and attendance for the Veteran's spouse has been established from January 23, 2018. See February 2018 rating decision. The effective date for an award of pension, compensation, or dependency and indemnity compensation (DIC) based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a);38 C.F.R. § 3.400. The effective date for an award of aid and attendance benefits will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.401. The effective date for an award of additional compensation payable to a veteran by reason of his spouse's need for aid and attendance will be the date of claim of date entitlement arose, whichever is later. However, when an award of disability compensation based on an original or supplemental claim is effective for a period prior to date of receipt of the claim additional disability compensation payable to a Veteran by reason of the spouse's need for aid and attendance shall also be awarded for any part of the award's retroactive period for which the spouse's entitlement to aid and attendance is established. 38 C.F.R. § 3.401(a)(3). Evidence of record detailed that the date entitlement arose was when the Veteran's spouse became wheelchair bound following a severe motor vehicle accident (MVA) in June 2002. However, VA had no notice of this until private treatment records and a December 2013 medical opinion were submitted to VA in June 2017. After the Veteran was granted service connection for PTSD with an initial 50 percent rating in October 2017, he submitted a claim for aid and attendance for his spouse in January 2018. On the claim form, the Veteran stated that his wife requires aid and attendance because she is a paraplegic and bound to a wheelchair from a June 2002 injury. Therefore, applying the law to the facts of this case, the assignment of an effective date of November 4, 2015, (the effective date of the Veteran's qualifying disability rating), for the award of SMC based on the need for regular aid and attendance for the Veteran's spouse is warranted. The October 2017 rating decision established service connection with a 50 percent rating for PTSD effective December 21, 2016. The initial requirements for SMC at the aid and attendance rate were met. 38 U.S.C. § 1502(b); 38 C.F.R. § 3.351(c). In this decision, the Board is granting an earlier effective date (November 4, 2015) for the grant of service connection and assignment of a 50 percent rating for the Veteran's PTSD. As a result, the requirements for SMC are met from that date. In January 2018, the Veteran submitted a claim with a statement of his spouse's need for aid and attendance showing she was wheelchair bound due to paraplegia following a severe MVA in June 2002, which was within one year following the decision notice concerning the October 2017 rating decision. The Board finds an effective date of November 4, 2015 for the grant of entitlement to SMC based on his spouse's need for aid and attendance is proper under 38 C.F.R. § 3.401(b)(3). The date of the qualifying disability rating was on November 4, 2015. The Veteran submitted his claim for aid and attendance for his spouse in January 2018, which was within one-year of the notice of the October 2017 rating decision that he had a qualifying disability rating greater than 30 percent. Therefore, the effective date for the SMC for aid and attendance of his spouse is also effective November 4, 2015. 4. Entitlement to TDIU The Veteran claims that his service-connected disabilities preclude him from engaging in substantially gainful employment. A total rating for compensation purposes 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's November 2015 application for TDIU indicated that he had a high school education and has not worked since 2004. The Veteran also stated that he has not worked due to his PTSD and hearing loss. Given the grant of a 70 percent disability rating for PTSD by the Board in this decision, the Veteran now meets the schedular requirement for PTSD. 38 C.F.R. § 4.16. The record contains evidence that the Veteran stated he stopped working to take care of his wheelchair bound spouse. The June 2020 private medical opinion addressed this issue and discussed the effect of the Veteran's PTSD on his employability. After a detailed review of the record and interview with the Veteran, the opinion provider concluded that the Veteran's PTSD symptoms have been completely disabling since at least 2004. "While the immediate reason he left the workforce in 2004 was to care for his paraplegic wife full-time," the Veteran had been unsuitable for gainful employment for years due to the severity of his PTSD. The medical records and information provided by the Veteran and his wife all indicate that the Veteran had worsening symptoms of PTSD steadily over time, with severe anxiety, decreased focus and concentration and the inability to manage specific tasks in a times fashion, accurately follow directions, or engage with other individuals in a safe, reasonable, and appropriate fashion. "These symptoms prevented the [Ve]teran from functioning in a manner allowing for consistent employment." The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363. Ultimately the question as to whether the Veteran's service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran has not worked since 2004 due to his service-connected disabilities preventing him from engaging in substantially gainful employment. The Veteran also now meets the schedular criteria for TDIU as of November 5, 2015. 38 C.F.R. § 4.16. In summary, the competent, probative evidence shows that the Veteran is entitled to TDIU. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.