Citation Nr: 21040384 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 18-48 383 DATE: July 3, 2021 ORDER Entitlement to an earlier effective date of January 1, 2011 for the award of a 100 percent evaluation for service-connected traumatic brain injury (TBI), posttraumatic stress disorder (PTSD), and dysthymia is granted. FINDINGS OF FACT 1. In an unappealed March 2013 rating decision, the RO granted service connection for traumatic brain injury residuals effective from January 1, 2011, the day following the Veteran's discharge from active service. 2. In an April 2017 rating decision, the RO granted an increased 100 percent evaluation for the service-connected traumatic brain injury, posttraumatic stress disorder, and dysthymia effective from December 18, 2015, the date VA received the Veteran's Intent to File. 3. In March 2014, relevant service treatment records were obtained that existed and had not been associated with the claims file at the time of the March 2013 rating decision. 4. The April 2017 rating decision awarding an increased 100 percent evaluation for the service-connected traumatic brain injury, posttraumatic stress disorder, and dysthymia effective from December 18, 2015, was based in part on the newly associated service treatment records. 5. The evidence is at least in relative equipoise as to whether the manifestations and severity of the of the Veteran's service-connected traumatic brain injury, posttraumatic stress disorder, and dysthymia shown during his January 2017 VA PTSD examination have been present since January 1, 2011. CONCLUSION OF LAW The criteria for an earlier effective date of January 1, 2011 for the 100 percent evaluation for the service-connected traumatic brain injury (TBI), posttraumatic stress disorder (PTSD) and dysthymia have been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.400, 4.1, 4.3, 4.7, 4.120, 4.125, 4.126, 4.124a, Diagnostic Code (DC) 8045, 4.130, DC 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Navy from December 1990 to December 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Historically, in a March 2013 decision, the agency of original jurisdiction (AOJ) granted entitlement to service connection for TBI residuals and assigned a 10 percent evaluation effective from January 1, 2011, the day following the Veteran's discharge from active service. See March 2013 Rating Decision. On December 18, 2015, VA received the Veteran's signed Intent to File a Claim for Compensation (VA Form 21-0966), and on December 16, 2016, within one year of the submission of the Intent to File, the Veteran filed a formal claim asserting, in pertinent part, entitlement to service connection for PTSD and entitlement to an increased evaluation for his service-connected traumatic brain injury. See December 2015 Intent to File a Claim for Compensation (VA Form 21-0966); December 2016 Veteran's Application for Disability Compensation (VA Form 21-526EZ). In the April 2017 rating decision that forms the basis of this appeal, rather than explicitly granting service connection for PTSD, the AOJ recharacterized the Veteran's service-connected TBI residuals to include his diagnosed psychiatric pathology, assigning an increased 100 percent evaluation for "traumatic brain injury, posttraumatic stress disorder, and dysthymia," effective from December 18, 2015, the date VA received the Veteran's Intent to File. See April 2017 Rating Decision. The Veteran appealed, arguing that the 100 percent evaluation was warranted as of January 1, 2011. For the reasons that follow, the Board agrees. 1. Entitlement to an earlier effective date of January 1, 2011 for the award of a 100 percent evaluation for the service-connected traumatic brain injury (TBI), posttraumatic stress disorder (PTSD) and dysthymia is granted. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. 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 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2), (3); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (holding that, in order to obtain an increased disability rating earlier than the date of the claim for increase, the evidence must show that the increase in disability occurred within the one year period prior to the date of claim for increase); VAOPGCPREC 12-98. Initially, the Board notes that, as discussed in the introduction above, the AOJ did not explicitly grant entitlement to service connection for the Veteran's claimed psychiatric disability. Instead, the April 2017 rating decision awarded an increased rating for "traumatic brain injury, posttraumatic stress disorder, and dysthymia," pursuant to the General Rating Formula for Mental Disorders. See April 2017 Rating Decision and Codesheet (reflecting that the AOJ rated the veteran's TBI residuals and psychiatric pathology using a hyphenated Diagnostic Code (8045-9411), pertaining to residuals of traumatic brain injury and rated on the provisions regarding PTSD); see also 38 C.F.R. § 4.124a, Diagnostic Code(DC) 8045 (residuals of traumatic brain injury); 38 C.F.R. § 4.130, DC 9411 (Posttraumatic stress disorder). See too 38 C.F.R. § 4.27 (reflecting that hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen). The AOJ noted that its decision to award the increased evaluation was based on the January 2017 VA PTSD examination report, which reflects the examiner's determination that it was not possible to differentiate the symptoms of the Veteran's TBI from those of his diagnosed PTSD and dysthemia. See April 2017 Rating Decision; January 2017 VA Initial PTSD Disability Benefits Questionnaire (DBQ). See also 38 C.F.R. § 4.124a, DC 8045 (instructing that, when the symptoms of comorbid mental disorders cannot be clearly separated from those attributable to the TBI, "assign a single evaluation under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions"). Accordingly, because the AOJ determined that the Veteran's psychiatric symptoms warranted a higher rating under the criteria for evaluating mental disorders, it assigned the rating that was more favorable to the Veteran, granting a 100 percent evaluation effective from December 18, 2015, the date VA received the Veteran's Intent to File. See April 2017 Rating Decision. The Veteran asserts entitlement to an earlier effective date for the assignment of the 100 percent rating, maintaining that an effective date is warranted as of the day following his last day of service, based on his pre-discharge claim for service connection for a TBI and associated symptoms. See, e.g., August 2020 Board Hearing Transcript. He additionally asserts that relevant service department records, including specifically a December 2010 Department of Defense (DOD) clinical record regarding his mental health condition, was associated with the claims file after the original March 2013 rating decision that assigned the initial evaluation for his TBI residuals. See id. See also December 2010 Chronological Record of Medical Care (reflecting the Veteran's report of experiencing psychiatric symptoms including anxiety, depression, irritability, and anhedonia, and containing diagnostic impressions including PTSD, adjustment disorder, and depression). In this regard, the Board notes that the Veteran does not assert, and the record does not reflect that he initiated an appeal of the March 2013 rating decision. See 38 U.S.C. § 7105 ; 38 C.F.R. §§ 20.201, 20.302, 20.1103. Neither was new and material evidence associated with the file within a year of that decision, to prevent it from becoming final. See 38 C.F.R. §§ 3.156(a), (b). See also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010) (indicating that the provisions 38 C.F.R. § 3.156 concerning the impact of VA's receipt of new evidence on finality apply equally to increased rating claims as they do to claims for service connection). An exception to the general effective date rule for claims after a final decision, however, is provided under 38 C.F.R. § 3.156(c). Specifically, at any time after VA issues a decision on a claim, if VA receives relevant service records that existed and had not been associated with the claims file when it first decided the claim, VA will reconsider the claim on its merits. 38 C.F.R. § 3.156(c)(1). Such records include (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. See 38 C.F.R. § 3.156 (c)(1). Further, an award made based all, or in part, on the newly received service department records is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the general provisions of 38 C.F.R. § 3.156 (a) (concerning petitions to reopen based on new and material evidence) applicable to a previously decided claim. 38 C.F.R. § 3.156(c)(3). In essence, the receipt of relevant service records unavailable at the time of the last final rating decision serves to vitiate the finality of that decision. See 38 C.F.R. § 3.156 (c). The U.S. Court of Appeals for Veterans Claims (Court) has clarified that "under... § 3.156(c), a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim." Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). Further, if the service department records lead to an altered evaluation of the claimant's disability, the effective date can relate as far back as the date of the original claim. See Emerson v. McDonald, 28 Vet. App. 200 (2016). Here, the record reflects that, at the time of the March 2013 rating decision, the Veteran's complete service treatment records (STRs) had not been associated with the claims file. In this regard, the March 2013 rating decision notes that the evidence of record at the time of the decision included "Service Treatment Records, from December 7, 1990 through October 12, 2010" and "Separations Physicals, dated December 15, 2010." There was no reference to additional service treatment records dated after October 2010. See March 2013 Rating Decision. Additionally, correspondence from regional office staff dated after the issuance of the March 2013 rating decision reflects that there was a "missing volume" of the Veteran's Service Treatment Records. See Email Correspondence dated from March 21, 2013 to March 25, 2013 (noting that only 2 of the three volumes of STRs had been associated with the claims file). The missing STRs were obtained in March 2014. See April 2017 Rating Decision (noting that the evidence reviewed included "Service Treatment Records, received March 20, 2014, from December 7, 1990 through December 16, 2010"). Among the newly associated records was the December 2010 DOD treatment note, discussed above, reflecting complaints of psychiatric symptoms and diagnoses including PTSD, adjustment disorder, and depression. See Chronological Record of Medical Care dated December 16, 2010. Importantly, the January 2017 VA examiner's determinations concerning the relationship between the Veteran's psychiatric pathology and his active service, the severity of his psychiatric manifestations, and, ultimately, the inseparability of the symptoms of the Veteran's diagnosed PTSD and dysthymia and those attributable to his service-connected TBI, was based, at least in part, upon the December 2010 service record, which the examiner cited as the sole piece of evidence supporting his diagnoses and positive etiological determinations. See January 2017 VA PTSD DBQ (noting that the "[e]vidence reviewed in support of the diagnosis include[ed]" the December 16, 2010 service record noting symptoms including "[a]nxiety, high irritability, emotional liability, depression as a chronic condition, sleeping much than usual and loss of pleasure"). And the April 2017 rating decision awarding a 100 percent evaluation for the service-connected TBI, PTSD, and dysthymia was based solely upon the results of the January 2017 VA PTSD DBQ. Therefore, the Board finds that the service treatment records obtained in March 2014 constitute "relevant official service records that existed and had not been associated with the claims file when it first decided the claim," as they show in-service psychiatric symptoms and treatment and provide a more complete picture of the manifestations of the Veteran's psychiatric condition at the time of his discharge in December 2010. See 38 C.F.R. § 3.156(c)(1). Furthermore, the Board finds that the April 2017 rating decision assigning the 100 percent evaluation based upon the Veteran's psychiatric symptomatology was "based all, or in part, on the newly received service department records." See 38 C.F.R. § 3.156(c)(3). The March 2013 rating decision is thus nonfinal, and the increased rating for TBI, PTSD, and dysthymia may be warranted as of the day after the Veteran's separation from active service if the evidence shows that the criteria for the rating was satisfied at that time. See 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (reflecting that, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection). In this regard, the Board notes that, as indicated above, the current 100 percent evaluation was based upon the findings made on VA PTSD examination in January 2017 and assigned under DC 8045-9411 pertaining to residuals of traumatic brain injury and rated on the provisions regarding PTSD, according to the General Rating Formula for Mental Disorders. See April 2017 Rating Decision and Codesheet; see also 38 C.F.R. §§ 4.27, 4.124a, DC 8045, 4.130, DC 9411. Under the General Rating Formula, a 10 percent disability rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. See 38 C.F.R. § 4.130, DC 9411. A 30 percent rating requires 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted where the disorder is manifested by 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating requires 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); and inability to establish and maintain effective relationships. Id. The maximum 100 percent rating requires 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; and memory loss for names of close relatives, own occupation, or own name. Id. Under the 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. This is because the symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant's condition that affect his or her occupational and social impairment. Id. at 443. Accordingly, if the evidence demonstrates that the claimant's psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Id. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the "frequency, severity, and duration" of a veteran's symptoms "play an important role" in determining the disability level). Additionally, while VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In the instant case, the symptoms identified by the VA examiner in January 2017 included suspiciousness; depressed mood; suicidal ideation; disturbances of motivation and mood; mild memory loss; persistent delusions; chronic sleep impairment; obsessional rituals which interfere with routine activities; persistent hallucinations; panic attacks (weekly); inability to establish and maintain effective relationships; impairment of short- and long-term memory; flattened affect; anxiety; difficulty in establishing and maintaining effective work and social relationships; and occupational and social impairment with reduced reliability and productivity. See January 2017 VA PTSD DBQ. See also April 2017 Rating Decision (noting that the symptoms noted on VA examination in January 2017 "show[] that the severity of [the Veteran's] disability most closely approximates the criteria for a 100 percent disability evaluation"). The Veteran's available post-service medical records do not reflect additional psychiatric treatment or evaluation. However, as discussed above, the December 2010 clinical note shows that in the month prior to his discharge, the Veteran was assessed as having a psychiatric disability, with a diagnostic impression that included PTSD and depression, manifested by symptoms including "[a]nxiety, high irritability, emotional liability, depression as a chronic condition, sleeping much than usual and loss of pleasure." See December 2010 Chronological Record of Medical Care. Additionally, the DOD treatment provider noted that the Veteran's mood was "[d]epressed[, i]rritable[, and a]ngry" and that his psychiatric pathology resulted in "disparaging thoughts & issues w[ith his] work & personal life." Id. The Veteran was referred to the mental health clinic; however, there is no indication that he followed through with the referral before his discharge two weeks later. See id. The Board finds that this assessment is consistent with the symptomatology identified by the January 2017 VA examiner. Moreover, there is no evidence reflecting that the Veteran experienced less severe psychiatric symptoms at any point during the period from January 1, 2011 through December 18, 2015. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (noting that "an effective date should not be assigned mechanically" but instead should be based on an examination of "all of the facts . . . to determine the date that [the Veteran's disability] first manifested" (internal quotations omitted)). Accordingly, considering that the Veteran's 100 percent evaluation was assigned based upon the evidence of severe psychiatric manifestations productive of symptoms including suspiciousness; depressed mood; suicidal ideation; disturbances of motivation and mood; mild memory loss; persistent delusions; a sleep pathology; obsessional rituals which interfere with routine activities; persistent hallucinations; panic attacks; inability to establish and maintain effective relationships; impairment of short- and long-term memory; flattened affect; anxiety; difficulty in establishing and maintaining effective work and social relationships; and occupational and social impairment with reduced reliability and productivity, given that there is medical evidence showing that the Veteran's psychiatric condition was diagnosed immediately prior to the relevant appellate period with identified symptoms consistent with those identified on later VA evaluation, and because there is no evidence reflecting that the Veteran experienced less severe psychiatric symptoms at any point during the period from January 1, 2011 through December 18, 2015, the Board finds that the January 2017 VA examination report most appropriately represents the level of severity of the Veteran's service-connected TBI, PTSD, and dysthymia throughout the appellate period, so from January 1, 2011, forward. As such, affording the Veteran the benefit of the doubt, the Board finds that the symptoms of the Veteran's service-connected TBI, PTSD, and dysthymia have most closely approximated the criteria for the assigned 100 percent rating since January 1, 2011. See 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). An effective date for the 100 percent evaluation is therefore warranted as of that date. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.