Citation Nr: 21032785 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 19-32 585 DATE: May 28, 2021 REMANDED Entitlement to disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to May 28, 2004 and a disability rating in excess of 50 percent for PTSD following May 28, 2004 is remanded. Entitlement to an effective date prior to July 21, 2003 for the grant of service connection for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1971 to May 1975, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge at a Travel Board hearing in February 2010. A transcript of this hearing has been associated with the claims file. By way of history, the Veteran filed a claim for service connection for PTSD in May 2004. The Agency of Original Jurisdiction (AOJ) denied the Veteran's claim in a May 2005 rating decision, the Veteran appealed this matter to the Board. The Board remanded the service connection claim in September 2010, March 2012, and March 2014 decisions to the AOJ for further evidentiary development. Following that development, the Board denied the Veteran's claim for service connection for PTSD in a June 2014 decision. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), both the Veteran and VA argued that the Board denial should be vacated, and the claim should be remanded back to the Board. The Court granted the JMR in an April 2015 order. The Board subsequently remanded the claim in May 2015 to the AOJ for development. The Board issued a second denial of service connection in May 2016. Following that denial, the Board issued another order in December 2016 to vacate its May 2016 denial. Subsequently, the Board issued a September 2017 decision granting the Veteran's claim for entitlement to service connection for PTSD. The AOJ issued the rating decision on appeal in November 2017, implementing the grant of service connection and assigning a 50 percent evaluation effective May 28, 2004. The Veteran filed a notice of disagreement (NOD) disagreeing with the disability rating assigned and the effective date. The AOJ then issued a rating decision in August 2019 granting the earlier effective date of July 21, 2003 because clear and unmistakable error was made and assigned the Veteran a 10 percent disability rating for his PTSD prior to May 28, 2004. 1. Entitlement to disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) prior to May 28, 2004 and a disability rating in excess of 50 percent for PTSD following May 28, 2004 is remanded. The Veteran is seeking entitlement to increased disability ratings for his service-connected PTSD for the entire period on appeal. As discussed in further detail below, the Veteran first filed a claim for PTSD and atypical anxiety disorder in May 1983. The Board finds that further evidentiary development is necessary to accurately determine the total period on appeal, including when entitlement for service connection arose, to properly adjudicate the Veteran's pending claims. In this respect, the Board seeks a retrospective opinion regarding the severity of the Veteran's psychiatric disability and associated symptoms. In February 1973, the schedular rating criteria did not include a diagnostic code for PTSD. 38 C.F.R. § 4.132 (schedule of ratings for mental disorders) (1973); see 45 Fed. Reg. 26326 (April 18, 1980) (the schedule for rating disabilities is being amended to include the new diagnostic classification of post-traumatic stress disorder). At that time, the general rating formula for psychoneurotic reaction contained criteria for evaluating mental disorders, such as PTSD, that are neither psychoses nor organic brain syndromes. 38 C.F.R. § 4.132 (general rating formula for psychoneurotic disorders) (1973). The schedular criteria for psychoneurotic disorders that were in effect at the beginning of the rating period at issue in this appeal were amended effective February 3, 1988. See 53 Fed. Reg. 23 (January 4, 1988). The criteria for rating mental disorders were again amended effective November 7, 1996; the November 1996 formula remains in effect. See 61 Fed. Reg. 52695 (October 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders) (2018). As such, the Veteran's claim must be considered under all three sets of criteria. The pre-1988 criteria and the applicable ratings allowed for a 10 percent evaluation was assigned for slight impairment of social and industrial adaptability; a 30 percent evaluation was assigned for definite impairment of social and industrial adaptability; a 50 percent evaluation was assigned for considerable impairment of social and industrial adaptability; a 70 percent evaluation was assigned with lesser symptomatology such as to produce severe impairment of social and industrial adaptability; and a 100 percent evaluation was for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. § 4.132, effective prior to February 1988. The above descriptive adjectives do not necessarily refer to the severity of the disease but rather to the degree of industrial and social impairment. Under the schedular criteria applicable from 1988, the applicable regulation provided that a 10 percent evaluation was assigned for mild impairment of social and industrial adaptability; a 30 percent evaluation was assigned for definite impairment of social and industrial adaptability; a 50 percent evaluation was assigned for considerable impairment of social and industrial adaptability; a 70 percent evaluation was assigned with lesser symptomatology such as to produce severe impairment of social and industrial adaptability; and a 100 percent evaluation was assigned for active psychotic manifestations of such extent, severity, depth, persistence or bizarreness as to produce total social and industrial inadaptability. 38 C.F.R. § 4.132, effective prior to November 1996. The term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing a degree of social and industrial inadaptability that was "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). Additionally, prior to November 7, 1996, in assessing the severity of physiological factors affecting a physical condition, these factors were evaluated according to the general rating formula for psychoneurotic disorders. The current schedular criteria, which became effective November 7, 1996, provides that a 100 percent evaluation 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; memory loss for names of close relatives, own occupation, or own name. A 70 percent evaluation is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Lastly, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. As mentioned above, based on a review of the evidence of record, the Board finds that an additional VA opinion must be obtained in order to retrospectively assess the severity of the Veteran's PTSD for the period covered by this appeal due to the fact there was a pending, unadjudicated claim from 1983. See Chotta v. Peake, 22 Vet. App. 80 (2008); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). A VA opinion retrospectively assessing the severity of the Veteran's PTSD for the period covered by this appeal is complicated because the VA regulations governing the adjudication of psychiatric disability claims were twice amended during that period. As an initial matter, the Board notes the Veteran has been diagnosed with other psychiatric disorders that are not included in his service-connected PTSD. Specifically, the record reflects diagnoses of adjustment disorder, depression, anxiety, drug dependency (in remission), alcoholism, and polysubstance abuse. See December 2012 VA examination; January 2011 VA examination; April 29, 2004 mental health note. To date, however, the VA examinations and opinions of record have not addressed whether the symptomatology of these nonservice-connected disabilities may be separated from the symptoms associated with his service-connected PTSD for the period from 1983 to the present for rating purposes. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability). Thus, the Board finds that a VA opinion must be obtained so as to accurately assess the severity of his PTSD prior to May 28, 2004. Further, the Veteran was incarcerated from 1974 until 1984. The current evidence of record indicates that the Veteran was involved in several physical altercations during his incarceration and that he struggled with anger management and impulse control, which may have been manifestations of his psychiatric disorder. Upon remand, attempts should be made to obtain the Veteran's medical records, if any are available, for this period of incarceration as they may reflect symptoms of his psychiatric disorders for this period of time and should be considered in the retrospective opinion. 2. Entitlement to an effective date prior to July 21, 2003 for the grant of service connection for PTSD is remanded. The Veteran contends he is entitled to an effective date prior to July 21, 2003 for the grant of service connection for PTSD. Review of the claims file reveals that a claim for service connection for PTSD and atypical anxiety disorder was received by VA on May 25, 1983. The Veteran also submitted a statement in support of his claim, detailing events that occurred to his deployment in Vietnam, which was received by VA on October 26, 1983. Thereafter, on May 28, 2004, VA received another claim seeking service connection for PTSD. In a November 2017 rating decision, the AOJ granted service connection for PTSD, and an effective date of July 21, 2003 was later assigned. As mentioned above, the record shows that the Veteran filed a formal claim for service connection for PTSD on May 25, 1983. There is no indication that that claim for service connection for PTSD was formally withdrawn or that it was adjudicated on the merits. Accordingly, the May 25, 1983 claim remained pending until service connection for PTSD was granted in November 2017. Given such, the date of claim is May 25, 1983. However, the Board cannot conclusively determine that date entitlement arose until the retrospective opinion mentioned above regarding the Veteran's PTSD or other psychiatric disabilities is obtained and reviewed. In light of the above, and because the requested development and decision on the remanded issue of entitlement to increased disability ratings for the Veteran's service-connected PTSD could significantly impact a decision on the issue of an earlier effective date for the grant of service connection for PTSD, the issues are inextricably intertwined. A remand of the claim for entitlement to an effective date prior to July 21, 2003 for the grant of service connection for PTSD is remanded. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Because a decision on the remanded issue of entitlement to increased disability ratings for the Veteran's service-connected PTSD could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand for the claim of entitlement to a TDIU is required. The matters are REMANDED for the following action: 1. Obtain all of the Veteran's psychiatric and/or mental health treatment records from the facility in which he was incarcerated from 1974 to 1984. All records/responses received must be associated with the electronic claims file. 2. Then, make arrangements with an appropriate VA medical facility for a retrospective opinion ascertaining the nature and severity of the Veteran's psychiatric disability for the period from May 1983 to May 3, 2004. The claims folder should be made available and reviewed by the examiner. The examiner must note in the examination report that the claims folder and the remand have been reviewed. The examiner must provide a complete rationale for any stated opinion. (a.) The examiner should assess the severity of the Veteran's service-connected PTSD using the rating criteria and/or disability evaluation worksheets in effect during the time period in question (those rating criteria appear in the text of this decision). (b.) The examiner must then identify all diagnosed psychiatric disorders for the period from May 1983 to May 3, 2004. (c.) The examiner should offer an opinion regarding whether symptomatology associated with the Veteran's other diagnosed (but non-service connected) psychiatric disorders can be distinguished from the symptomatology associated with the service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question must be attributed to the service-connected disability). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the inextricably intertwined issues of entitlement to an earlier effective date for the grant of service connection for PTSD and entitlement to a TDIU. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.