Citation Nr: 22014422 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-38 517A DATE: March 12, 2022 ORDER A 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is granted effective April 18, 2015 (rather than just since July 18, 2018). REMANDED Entitlement to service connection for breast cancer is remanded. Entitlement to service connection for alopecia areata (hair loss) is remanded. Entitlement to service connection for neurological impairment of the right hand is remanded. FINDING OF FACT The Veteran's PTSD with MDD has caused total occupational and social impairment since at least April 18, 2015. CONCLUSION OF LAW The criteria are met for the higher 100 percent rating for PTSD with MDD as of April 18, 2015 (rather than just since July 18, 2018). 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC/Code) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U. S. Air Force from March 1966 to July 1967. This appeal to the Board of Veterans' Appeals (Board) is from a July 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in part, confirmed and continued a 50 percent rating then in effect for the Veteran's PTSD with persistent depressive disorder due to military sexual trauma (MST). The RO also denied her claims for service connection for breast cancer, hair loss, and nervousness of her right hand. However, a more recent April 2018 RO rating decision, during the pendency of this appeal, increased the rating for the PTSD with persistent depressive disorder due to MST to 70 percent as of April 4, 2018. And an even more recent September 2019 rating decision, so also during the pendency of this appeal, again increased the rating for this service-connected mental disorder this time to 100 percent as of July 18, 2018. So, the rating for this disability has been "staged". See Hart v. Mansfield, 21 Vet. App. 505 (2007) (permitting assignment of different ratings at different times during the period under review to compensate the Veteran for changes in severity of the service-connected disability). This appeal therefore now concerns whether a rating higher than 50 percent was warranted prior to April 4, 2018 (more specifically, from April 18, 2015, through April 3, 2018) and whether a rating higher than 70 percent was warranted from April 4, 2018, to July 17, 2018 since, as mentioned, the Veteran has had the highest possible schedular rating of 100 percent since July 18, 2018. See Grantham v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). In support of these claims, the Veteran testified at a "virtual" teleconference hearing in June 2021 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Entitlement to increases in the "staged" ratings for the PTSD with MDD Disability evaluations are determined by the application of a schedule of ratings (Rating Schedule), which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. PTSD is rated under the General Rating Formula for Mental Disorders, which provides for a 50 percent rating when there is 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. A 70 percent rating is warranted when there 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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. See 38 C.F.R. § 4.130, DC 9411. The use of the term "such as" in 38 C.F.R. § 4.130 indicates the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment). That said, in Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) held that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely based on social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. When a question arises as to which of two ratings under a particular code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. During the June 2021 hearing before this Board, the Veteran's attorney pointed out this claim was filed in April 2016 (so the rating period dates back to April 2015, i.e., from one year prior to receipt of this increased rating claim). See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise, the general rule of 38 C.F.R. § 3.400(o)(1) applies. Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). During her June 2021 hearing before this Board, the Veteran said she feels the RO "low balled" her in her initial rating. Her attorney believes the RO did that because she was still working at the time for VA and the RO adjudicator only looked summarily at the report of the April 2018 VA compensation examination (which was used to assign the higher 100 percent rating). But the Veteran says she essentially was being accommodated prior to then (allowed to take leave at her job, such as to attend her online group therapy). She explained that, on average, she missed about 5 days each month for that reason, plus her employer gave her an extra hour to come into work and get situated (allowed that accommodation every day). But, according to her, she was totally disabled, even then, owing to suicidal ideation, no friends (except her daughter, who is her "rock"), memory impairment (including not remember her social security number (SSN), names of those even she knows), decreased personal hygiene, such as did not shower for 2-3 days and that happened about 2-3 times each month (felt she "had to keep moving; can't slow down"), spontaneous crying spells, paranoid thoughts, and hallucinating ("shadows" from the corner of her eye, but she turns to look at them they're not actually there). Thus, they want the 100 percent rating for the PTSD with MDD at least back to April 2015 (i.e., back to one year prior to the increased rating claim, per Harper), if not all the way back to the time of the Veteran's discharge from service. The Veteran's initial 50 percent rating, however, dates from January 1997, so from well before the rating period now at issue in this appeal. She did not appeal that initial rating or effective date for it, meaning in the year immediately following the determination she was entitled to service connection for this disability. These are "downstream" issues that she had to separately appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). So, that earlier decision assigning this initial rating and effective date is final and binding on her based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Moreover, she cannot vitiate the finality of that earlier decision unless she shows it involved clear and unmistakable error (CUE), and no such allegation has been made, much less with the required specificity of how that earlier decision was fatally flawed, egregious, or involved misinterpretation of facts or misapplication of the law then in effect. See Simmons v. Principi, 17 Vet. App. 104 (2003). Also, the Board would be precluded from considering any CUE claim (so even if there was one) in the first instance meaning before the RO has had this opportunity since not a collateral attack on a Board decision (as opposed to a RO decision). See Jarrell v. Nicholson, 20 Vet. App. 326 (2006). The Board also is prohibited from directing the RO (as the Agency of Original Jurisdiction (AOJ)) to investigate the issue of CUE in an RO decision in the first instance. Brent v. McDonald, No. 14-2669, 2015 U.S. App. Vet. Claims LEXIS 1401 (Oct. 19, 2015.) Therefore, turning now to the rating period under review in this appeal, meaning since April 2015, in response to her April 2016 claim for a higher rating the Veteran was afforded a VA examination for her PTSD and MDD in June 2016. She had been working with VA as a peer support worker for the past two and a half years. She reported getting along well with most Veterans at her job. She added that she had not received any mental health treatment for at least five years prior. She reported persistent fear, anxiety, and difficulty with concentration but denied suicidal ideation. She endorsed symptoms of chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, difficulty understanding complex commands, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. The examiner diagnosed PTSD and surmised it caused occupational and social impairment with reduced reliability and productivity, so an extent of functional impairment that is commensurate with the 50 percent rating under DC 9411 in effect during this initial period being considered. The Veteran was next examined by VA in April 2018. She reported that she was still working as a peer support worker. She reported increased stress due to her then recent diagnosis of breast cancer. She reported living alone but having some friends and good relationships with her two adult children. She reported symptoms such as depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner diagnosed PTSD and surmised it caused occupational and social impairment with reduced reliability and productivity, so again concluded the extent of functional impairment was commensurate with the 50 percent rating under DC 9411 the Veteran had until April 4, 2018, i.e., until that mental status evaluation, when her rating was increased to 70 percent. But, as a supplement, the Veteran had a private PTSD examination in July 2018 that formed the basis for again increasing the rating for her PTSD with MDD, this time from 70 to 100 percent. She reported continuing to work as a peer support worker, but with accommodations. She reported ongoing relationships with her children. She reported symptoms such as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and persistent delusions or hallucinations. The examiner diagnosed PTSD and surmised it caused total occupational and social impairment, hence, the reason the 100 percent rating was assigned as of July 18, 2018. The Veteran's most recent VA examination for her PTSD with MDD was in May 2021, but during a time when she already had a 100 percent rating for this service-connected disability. She reported becoming more withdrawn and not wanting to be around people, but that she still worked as a peer support worker. She reported more panic attacks, lower energy, feeling depressed, and poor sleep. She reported passive suicidal ideation, meaning with no active intent or plan. Nevertheless, the Court has explained how mere suicidal ideation, alone, is sufficient, even without active intent or plan. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Veteran reported symptoms such as depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. The examiner diagnosed PTSD and surmised it caused occupational and social impairment with deficiencies in most areas which is commensurate with a 70 percent rating, although, as mentioned, the Veteran has a 100 percent rating even during the time of this examination. As a further supplement following her June 2021 hearing before this Board, the Veteran was reexamined in September 2021 by the same private psychologist who had examined her previously in July 2018 for the purpose of opining on the Veteran's level of functioning dating back to April 2015. The Veteran reported that she continued to work for VA but receives significant accommodations for her PTSD including a flexible schedule and the ability to turn down or change assignments if she determines they are too difficult or uncomfortable for her. She also cited receiving help in completing her activities of daily living (ADLs). She described feelings of depression, anxiety, panic attacks, sleep disturbances, anhedonia, isolation, recurrent nightmares, and guilt. The examiner diagnosed PTSD and surmised that it is more likely than not it has caused the Veteran total social and occupational impairment since at least 2015 meaning since at least the year prior to her filing this claim for a higher rating for this disability. It is permissible for an examiner to provide this type of "retrospective" opinion regarding the severity of a disability at some earlier point in time, so in hindsight. See, e.g., Chotta v. Peake, 22 Vet. App. 80 (2008). Also consider that, in McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran actually was experiencing relevant symptoms. Similarly, in Swain v. McDonald, 27 Vet. App. 219 (2015), the Court held that assigning the effective date of an increased rating is not a mechanical exercise of applying the date of the VA examination that warranted the increase. Id., at 223-24. Rather, the Board must review all relevant evidence to determine when the increase in the disability can be factually ascertained. Id. Thus, to this end, the Board has considered whether the evidence of record suggests that the severity of pertinent symptoms had increased sometime prior to the date of the examination reports noting pertinent findings. And, after considering all the evidence relevant to this determination, including the Veteran's credible hearing testimony and lay statements, the Board concludes that it is at least as likely as not that she has had what amounts to total occupational and social impairment since at least April 18, 2015, because of her PTSD with MDD. While she works for VA, so for this same Federal Agency and therefore is still employed, she receives several accommodations allowing her to continue working. This is significant because, unlike a 100 percent schedular rating for a mental disorder, a total disability rating based on individual unemployability (TDIU) requires less. A Veteran need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of the Veteran's overall employability in the TDIU context. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Thus, because the Veteran already has a 100 percent schedular rating for her PTSD with MDD, despite her continuing to work, it follows that the accommodations she has received at her job since April 2015 are not a preclusion to her having this 100 percent schedular rating for her PTSD with MDD even from this earlier point in time. See 38 C.F.R. § 4.18. She is allowed to be absent five days a month and is afforded flexible work hours and assignments. No competitive work environment would afford a worker these sorts of accommodations. She is dependent on her daughter to help her and is often unable to complete her ADLs such as maintaining proper hygiene. She has memory loss at times and is unable to remember even basic personal information, such as her own SSN. Accordingly, the Board finds that she has had what amounts to total occupational and social impairment owing to her PTSD with MDD since April 18, 2015 (i.e., since the year prior to filing her increased rating claim); thus, her 100 percent schedular rating for this service-connected disability is granted as of that earlier date (rather than just since July 18, 2018). See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for breast cancer is remanded. 2. Entitlement to service connection for hair loss is remanded. 3. Entitlement to service connection for nervousness of the right hand is remanded. During her June 2021 hearing before this Board, the Veteran attributed her breast cancer to her stress level (depression), so to her service-connected mental disorder. She expounded that, even if her depression did not necessarily cause her breast cancer, it is aggravating it. Thus, this claim is predicated on the notion of secondary service connection. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). She claims her hair loss (alopecia areata) also is attributable to her mental disorder (i.e., PTSD with MDD), so depression, too, although she admits her doctors have not actually told her there is any correlation. She also conceded this condition started after her service, but she said it has continued to progress over the years. The claim concerning her right hand is for what she described as neurological impairment; she thinks it also is from her stress and depression "over time". Thus, these claims are "inextricably intertwined" since she claims they all stem at least partly from her service-connected mental disorder (PTSD with MDD). See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are "inextricably intertwined" when the adjudication of one claim could have a significant impact on the adjudication of other claims). After the hearing, the Board held the record open for an additional 90 days to allow the Veteran and her attorney time to obtain and submit additional evidence and/or argument including supporting medical nexus opinions concerning this posited correlation between her service-connected PTSD with MDD and these additionally claimed conditions. To this end, in October 2021 they submitted an opinion from her psychologist dated in September 2021 essentially surmising these conditions were more likely than not aggravated by her mental health condition (PTSD with MDD). However, since these other conditions being claimed to be the results of her service-connected mental health condition are instead medical in nature, and since she has not been afforded a VA compensation examination for them, the Board is having this done for additional medical comment regarding their nature and etiology, including especially in relation to her service-connected PTSD with MDD. Accordingly, these remaining claims are REMANDED for the following action: Afford the Veteran VA examinations for medical opinions concerning the nature and etiology of her breast cancer, hair loss, and right-hand disability. A copy of this remand and all relevant treatment and other records must be made available to the examiner. The examiner should review the pertinent evidence, including the Veteran's lay assertions, and undertake all necessary diagnostic testing and evaluation, including indicated by the current Disability Benefits Questionnaire (DBQ). Based on a review of the results of the Veteran's physical examination, her statements regarding the development and treatment of her claimed disabilities, and review and consideration of all relevant evidence including especially the September 2021 statement from her psychologist (Dr. A. N., PsyD), which was submitted in October 2021, the VA compensation examiner is asked to answer the following questions for each of the claimed disabilities: (a.) Is it at least as likely as not (a 50 percent probability or greater) the Veteran's claimed disabilities began during her service or are otherwise directly related to a disease, an event, or an injury during her service? (b.) Since one of the claims is for breast cancer and if either of the other two claims involves arthritis or some other "chronic" condition, per se, as contemplated by 38 C.F.R. § 3.309(a), is it at least as likely as not (a 50 percent probability or greater) the condition initially manifested within a year of the Veteran's separation from service? (c.) Alternatively, is it at least as likely as not (a 50 percent probability or greater) the Veteran's claimed disabilities were caused OR are aggravated by her service-connected mental disorder (PTSD with MDD)? When responding, whether favorably or unfavorably, the examiner must provide explanatory rationale for all medical opinions concerning these claims preferably citing to findings or other evidence in the file and/or accepted medical authority. The mere absence of evidence of treatment for these claimed disabilities in the Veteran's service treatment records (STRs) cannot, at least alone, be the sole or exclusive reason for disassociating these claimed disorders from her service, especially since they primarily are predicated on the notion of secondary service connection (meaning causation OR aggravation of them since service by the service-connected mental disorder (PTSD with MDD)), although this can be a consideration if explanation is provided as to why there reasonably should be this expectation. The examiner is also advised that the Veteran is competent to report her symptoms and history, and her reports must be specifically considered in formulating all opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason or explanation for doing so. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.