Citation Nr: 21032415 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-44 417 DATE: May 27, 2021 ORDER Entitlement to an effective date prior to August 15, 2014 for the award of service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to an initial disability rating for PTSD of 50 percent, but no higher, from August 15, 2014 to December 23, 2019 is granted. Entitlement to an initial disability rating for PTSD in excess of 50 percent, from December 23, 2019 is denied. FINDINGS OF FACT 1. On August 15, 2014, the Veteran submitted an initial claim of service connection for PTSD. 2. From August 15, 2014 to December 23, 2019 the Veteran's PTSD symptoms resulted in at worst, occupational and social impairment with reduced reliability and productivity. 3. From December 23, 2019, the Veteran's PTSD did not manifest in symptoms of such severity to cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood CONCLUSIONS OF LAW 1. The criteria for an effective date prior to August 15, 2014, for the establishment of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. From August 15, 2014 to December 23, 2019, the criteria for an initial increased rating of 50 percent, but no higher, for PTSD were met. 38 U.S.C. § §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. From December 23, 2019, the criteria for an initial increased rating in excess of 50 percent for PTSD 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 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1981 to May 1993, with additional Reserve service. These matters come before the Board of Veterans' Appeal (Board) on appeal from a November 2015 rating decision by a Department of Veterans' Affairs (VA) Regional Office (RO). The rating decision granted service connection for PTSD and assigned an initial disability rating of 30 percent effective August 15, 2014. In November 2018, the Board remanded this case for further development. It has since been returned to the Board for appellate review. In a July 2020 rating decision, the RO increased the disability rating assigned for PTSD from 30 percent to 50 percent effective December 23, 2019. As this did not represent a full grant of the benefits sought for any portion of the relevant appeal period, the issue of entitlement to a higher initial disability rating for PTSD remains on appeal. The Board notes that the Veteran has indicated that his PTSD, in combination with other disabilities for which he is presently seeking service connection, has rendered him unable to secure and follow a substantially gainful occupation. A claim for a total disability rating based on individual unemployability (TDIU) has thus been raised as part and parcel of the claim for a higher initial disability rating for PTSD. The Board notes, however, that the appeal of denial of a TDIU was previously remanded for further development in March 2020. Such has not yet been completed, and a determination on the issue of entitlement to a TDIU will be made in a later decision. 1. Entitlement to an effective date prior to August 15, 2014 for the award of service connection for PTSD. The Veteran seeks an effective date prior to August 15, 2014 for the establishment of service connection for PTSD. Following review of the record, the Board finds that there is no basis upon which to award an effective date earlier than that already assigned. Generally, the effective date of an award of service connection is 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. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of the claimant's application. 38 U.S.C. § 5100(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). VA amended its adjudication regulations within the last few years to require that all claims governed by VA's adjudication regulation be filed on standard forms prescribed by the Secretary; but as the effective date assigned for the grant of service connection for PTSD is prior to the March 24, 2015 effective date of the regulatory change, the more-restrictive amended regulation is not for application in the present case. In cases prior to the regulatory change, VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 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); 3.155. Any documented communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identified the benefit sought, may be considered an informal claim. 38 C.F.R. §§ 3.155(a). Thus, the essential elements for any claim, whether formal or informal are "(1) an intent to apply for benefits, (2) an indication of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). With regard to the terms "application" or "claim," the Board notes that under the pre-amended regulations, once a formal claim for compensation had been allowed, the date of outpatient or hospital examination, or date of admission to a VA or uniformed services hospital, will be accepted as the date of receipt of a claim, provided such report of examination or hospitalization relates to examination or treatment of a disability for which service connection has previously been established; or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). The Veteran filed his initial claim for service connection for PTSD on August 15, 2014. In a November 2015 rating decision, the RO granted service connection for that disability effective August 15, 2014. As such, the RO has already assigned the earliest effective date allowed under the law, and the Veteran's claim must be denied. A preponderance of the evidence is found to demonstrate that the Veteran did not submit a formal claim or written correspondence indicating an intent to file a claim for service connection benefits for a psychiatric disorder prior to his August 15, 2014 application. The claim was additionally not received within the one-year period following the Veteran's separation from service. As such, there is no basis upon which to assign an earlier effective date for the grant of service connection for PTSD. In finding that an earlier effective date is not warranted, the Board acknowledges the Veteran's assertion that the effective date should be tied to the date of his discharge from active duty rather than the date he filed his service connection claim, because he was suffering from psychiatric symptoms and impairment at the time. However, as the Veteran's claim was not received within the one-year period following the Veteran's separation from active service, the effective date assigned may only be the latter of the date of claim or the date entitlement arose. The Board is bound by the law, and its decision is dictated by the relevant statutes and regulations. As the application that VA received on August 15, 2014 was the Veteran's earliest claim seeking service connection for PTSD, the award of service connection for that disability cannot be effective prior to that date. See 38 C.F.R. § 3.400. The appeal seeking an earlier effective date must therefore be denied. 2. Entitlement to an initial increased rating, in excess of 30 percent from August 15, 2014 to December 23, 2019. 3. Entitlement to an initial increased rating, in excess of 50 percent from December 23, 2019. During the period from August 15, 2014 to December 23, 2019, the Veteran is in receipt of a 30 percent rating for PTSD under Diagnostic Code 9411. He is also in receipt of a 50 percent rating for PTSD from December 23, 2019. He asserts that his symptoms during those periods were severe enough to merit a higher initial rating. Following review of the record, the Board finds that a 50 percent rating, but no higher, is warranted for the entire appeal period. Disability evaluations are determined by applying a schedule of ratings, which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 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). As relevant here, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned 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 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. Turning to the evidence, the Veteran's November 2015 examiner noted depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), disturbances of motivation and mood, difficulty adapting to stressful circumstances. During his November 2015 VA examination, the Veteran stated that he maintains a few relationships with friends and family. The examiner noted that the Veteran's social activities were currently limited because of his incarceration at the time. Despite his situation, the Veteran stated that he tries to be sociable, "caring and sharing," and a "good neighbor." In the Veteran's January 2016 (Notice of Disagreement) NOD, he notes that his affidavit and lay statements describe his depression, severe memory loss, gross social impairment, impaired judgment, impaired abstract thinking, panic attacks weekly or more often, constant hypervigilance, difficulty in most if not all social and work relationships, and periods of grossly inappropriate behavior. See also September 2014 Correspondence, April 2015 Statement in Support of PTSD, December 2015 Statement in Support of Claim. The Veteran provided a buddy statement from his fellow inmate, J.P., dated in September 2014 regarding the Veteran's present level of mental functioning. Although J.P. claimed that he is a clinical psychologist, the Board finds that his loss of his medical license prevents him from reporting competent medical evidence. However, J.P. competently reported lay evidence that the Veteran appears to be "in a fog" and "sometimes lost." The Veteran also submitted buddy statements from two other friends, A.A. and F.F., in December 2015. The Veteran's friends noted that he had developed "memory problems" and appeared "guarded and withdrawn." The memory problems were described as needing to make notes and forgetting a conversation from the day before. In January 2016, the Veteran submitted a private medical treatment record documenting the symptoms associated with this PTSD. The Veteran was given a PULHES score of 1 for "S" in private medical examinations dating from February 2008 to May 2014, suggesting that his psychiatric condition was at a high level of fitness. The "PULHES" profile reflects the overall physical and psychiatric condition of an individual on a scale of 1 (high level fitness) to 4 (medical condition or physical defect is below the level of medical fitness required for retention in military service). The "P" stands for "physical capacity or stamina," the "U" stands for "upper extremities," the "L" stand for "lower extremities," the "H" reflects the condition of the "hearing and ears," the "E" is indicative of the "eyes," and the "S" stand for "psychiatric condition." Odiorne v. Principi, 3 Vet. App. 456, 457 (1992). In the Veteran's September 2019 VA Form 9, he stated that he suffers from "obsessive ritual" which disrupt his routine activities, and "has difficulty functioning independently and is often irritable." He further asserted that he has deficiencies in most areas, work, school, family relations, judgment, thinking, and mood, and suffers from gross impairment in thought processes, has severe short and long term memory loss, and displays grossly inappropriate behavior (referencing his "current assaultive offense."). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the evidence supports an increased award of a 50 percent rating for the Veteran's unspecified depressive disorder from August 15, 2014 to December 23, 2019. In that regard, the Veteran's PTSD symptoms during that period included panic attacks more than once a week; difficulty in understanding complex commands; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. See November 2015 VA examination, and January 2016 NOD. Resolving reasonable doubt in the Veteran's favor, the Board finds these symptoms most closely approximate the criteria for a 50 percent, rather than 30 percent, rating. Turning to entitlement to a rating in excess of 50 percent, the record to include the Veteran's lay statements, buddy statements, private treatment records, VA treatment records, and VA examination reports do not demonstrate that the Veteran's overall disability picture more nearly approximates a higher rating. Rather, the Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The Veteran had another VA examination in December 2019, in which his PTSD symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory (for example, retention of only highly learned material, while forgetting to complete tasks), flattened affect, and disturbances of motivation and mood. The examiner noted that the Veteran has occupational and social impairment with reduced reliability and productivity. Additionally, the examiner noted that the Veteran has remained incarcerated since the prior VA examination. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against granting a rating in excess of 50 percent from December 23, 2019. The Veteran's disability was not manifested by 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, or other symptoms of similar duration, frequency, and severity supportive of a 70 percent rating. The Board also acknowledges the Veteran's statement on his VA Form 9 asserting that his PTSD manifests in symptoms contemplated by the 70 percent criteria. However, the Veteran merely listed the symptoms enumerated under the diagnostic code, and did not provide any description or detail of his personal experience with such symptoms, such as what kind of obsessional rituals he performs or what sort of thought processes he experiences that demonstrate gross impairment. While the Veteran referenced his "current assaultive offense" as demonstrating impaired impulse control, the Board notes that the offense in question was committed by the Veteran in May 1999, 15 years prior to his filing a claim for service connection for PTSD. See November 2015 Prison/Convict Information printout. The lay assertions included on the VA Form 9 are thus found to carry little probative weight. Additionally, the December 2019 VA examiner observed that obsessive-compulsive behavior was absent. He described the Veteran as oriented within normal limits and appropriate in appearance, hygiene, and behavior, but noted he presented with a flattened affect. The examiner also noted that the Veteran's thought processes and communication were appropriate, and that his judgment was not impaired. Suicidal and homicidal ideation were noted to be absent. In summary, the symptoms associated with the Veteran's service-connected PTSD, as reported by the Veteran and lay witnesses and as observed by clinicians, are not of a severity, frequency, and duration that supports a rating in excess of 70 percent, nor does the evidence establish that they cause occupational and social impairment with deficiencies in most areas. For this reason, the Board finds that a 50 percent disability rating for PTSD is most closely approximated for the period from December 23, 2019. The Board has considered the applicability of the benefit of the doubt doctrine in reaching its conclusions and has applied it in awarding an initial increased rating of 50 percent disability rating for PTSD from August 15, 2014 to December 23, 2019. However, with respect to entitlement to an even higher rating, the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 4.3, 4.7. A. SOLOMON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S.E. Bresler, 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.