Citation Nr: 22013797 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 17-39 995 DATE: March 10, 2022 ORDER An effective date of June 7, 2012, but not earlier, for a 70 percent rating for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and cocaine-use disorder, is granted. FINDINGS OF FACT 1. Within the one-year appeal period following the December 2004 and August 2012 rating decisions that denied a rating in excess of 50 percent for the service-connected psychiatric disorder, new and relevant VA treatment records were generated and VA did not provide a determination directly responsive to whether the new submissions constituted new and material evidence. 2. Since June 7, 2012, the Veteran's service-connected psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas, due to signs and symptoms to include suicidal ideation. 3. Prior to June 7, 2012, the Veteran's service-connected psychiatric disorder was productive of occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an effective date of June 7, 2012, but not earlier, for a 70 percent rating for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and cocaine-use disorder, have been met. 38 U.S.C. § 5110, 5103, 5103A, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1989 to July 1993, including combat service in the Persian Gulf and his decorations include the Bronze Star Medal with "V" device and the Combat Medical Badge. In June 2018, the Board, in pertinent part, denied entitlement to an effective date prior to July 25, 2016, for the grant of a 70 percent rating for the Veteran's psychiatric disorder. In December 2018, the United States Court of Appeals for Veterans Claims (Court), on the basis of a Joint Motion for Remand (Joint Motion), vacated the denial and remanded the matter to the Board for further action. In June 2019, the Board denied the Veteran's claim In June 2020, the Court, on the basis of a Joint Motion, vacated the denial and remanded the matter to the Board for further action. In January 2021, the Board denied the Veteran's claim. In June 2021, the Court, on the basis of a Joint Motion, vacated the denial and remanded the matter to the Board for further action. In September 2021, the Board remanded the case for further development. An effective date of June 7, 2012, but not earlier, for a 70 percent rating for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and cocaine-use disorder, is granted. Initially, as detailed in the Board's June 2021 decision, the Veteran's August 2004 and March 2011 claims did not become final because, after the December 2004 and August 2012 rating decisions denied a rating in excess of 50 percent for PTSD, additional relevant VA treatment records were subsequently generated within the one-year appeal period of each decision and VA did not provide a determination that was directly responsive to the new submissions regarding whether these VA-generated records constituted new and material evidence. See 38 C.F.R. § 3.400(o)(2); Lang v. Wilkie, 971 F.3d 1348, 1350 (Fed. Cir. 2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). As such, the issue remains open since August 2003, which is one year prior to the date of the August 2004 claim. Furthermore, the claim filed in September 2014 was not final because, after the March 2015 rating decision denied his claim for increase, he underwent a July 2015 VA PTSD examination where the VA examiner noted suicidal ideation, irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects, and difficulty in adapting to stressful circumstances, including work or a work like setting. See Beraud, 766 F.3d at 1407. Next, the evidence of record between August 2003 (one year prior to the August 11, 2004, claim) and the March 2015 rating decision shows that it was first factually ascertainable that the Veteran's psychiatric disorder met the criteria for a 70 percent rating on June 7, 2012. The Veteran's psychiatric disorder has been rated under Diagnostic Code 9411, which provides a 50 percent disability rating 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. A 70 percent rating, is 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 an inability to establish and maintain effective relationships. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Turning to the evidence of record, VA treatment records generated within one year of the December 2004 rating decision include mental health treatment since February 2005, which continued to show that the Veteran remained chronically depressed but exhibited good to fair impulse control and judgment. These assessments were negative for any auditory or visual hallucinations, thought disorder, paranoid ideations, as well as homicidal and suicidal ideation. Additional VA treatment records and VA examinations since the December 2004 rating decision until June 2012 did not show any significant changes in the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected psychiatric disability that more nearly approximate the level of occupational and social impairment to warrant a rating above 50 percent. The June 7, 2012, VA Mental Health Physician Note marked a turning point in the state of the Veteran's mental health. Based on facts found, it was at this point that it became factually ascertainable that an increase in severity occurred. Specifically, the June 2012 Note is the earliest evidence showing that the Veteran experienced suicidal thoughts. Subsequent treatment records further support an increase in the severity of the Veteran's psychiatric signs and symptoms. Specifically, an October 2013 VA treatment record shows poor impulse control and well as auditory and visual hallucinations. An April 2014 VA treatment record shows "lot[s] of paranoid ideations." During the March 2015 VA PTSD examination, the Veteran reported episodes of passive suicidal ideation. Accordingly, the Board finds that since June 7, 2012, the Veteran's symptoms, chiefly his suicidal ideation, have been suggestive of occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Indeed, the Board's determination is in line with subsequent reports of suicidal ideation and symptoms such as hallucinations, poor impulse control and paranoid ideations. As June 7, 2012, marks the first point at which evidence shows that the Veteran's psychiatric disorder increased in severity, June 7, 2012, that is, after his then-pending August 2004 claim, reflects the earliest possible effective date for the grant of a 70 percent rating. Accordingly, an effective date of June 7, 2012, but not earlier, for a 70 percent rating for an acquired psychiatric disorder, to include PTSD, major depressive disorder, and cocaine-use disorder is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.