Citation Nr: 23040552 Decision Date: 07/25/23 Archive Date: 07/25/23 DOCKET NO. 19-35 311 DATE: July 25, 2023 ORDER Entitlement to an evaluation greater than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to October 7, 2010, for the grant of service connection for PTSD is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's PTSD symptoms did not more closely approximate total occupational and social impairment. 2. Prior to the October 7, 2010, claim for compensation, there was no pending formal claim, informal claim, or a written intent to file a claim for service connection for an acquired psychiatric disorder, to include PTSD. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 70 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. 2. The criteria for an effective date prior to October 7, 2010, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marines Corps from July 1976 to January 1979. These matters are on appeal from a March 2018 Board decision. In January 2019, the Board remanded the appeal for the issuance of statement of the case. The Agency of Original Jurisdiction (AOJ) issued a statement of the case, and the Veteran perfected an appeal. There has been substantial compliance with the Board's prior remand directives. The Veteran has been awarded a total disability rating based upon individual unemployability (TDIU) for the entire appeal period. Therefore, the issue of entitlement to a TDIU is not before the Board. The Veteran's attorney has withdrawn representation. The AOJ notified the Veteran of the withdrawal in September 2020. The Veteran is now pro se. 1. Entitlement to an evaluation greater than 70 percent for PTSD. The Veteran contends that she is entitled to an increased evaluation for her PTSD 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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. In June 2014, the Veteran was afforded a VA PTSD examination. The VA examiner diagnosed PTSD, major depression, alcohol dependence in sustained remission, and borderline personality traits. Her PTSD was manifested by recurrent recollections, distressing dreams, impaired sleep, psychological distress, physiological reactivity, avoidance behaviors, diminished interest, feeling detached, irritability, anger, impaired concentration, hypervigilance, and increased startle response. Her symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired judgement, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances including work or a work like setting. The VA examiner was unable to differentiate the occupational and social impairment due to each mental disorder. The Veteran's acquired psychiatric disorder were manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran underwent another VA examination in September 2017. The VA examiner diagnosed PTSD and unspecified personality disorder. Her PTSD was manifested by recurrent and distressing recollections of the events; recurrent distressing dreams related to the events; marked physiological reactions to cues of the events; avoidance of distressing memories, thoughts, or feelings about the events; avoidance of external reminders of the events; persistent negative emotional state; excessive irritability; reckless and self-destructive behaviors; problems with sleep; and decreased concentration. The Veteran had been married for 23 years and had contact with one daughter. Her symptoms were depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. During the examination, the Veteran's thought process was logical, linear, and goal directed. Insight and judgment were within the normal limits. The VA examiner was unable to differentiate the occupational and social impairment caused by each diagnosis. The Veteran's acquired psychiatric disorders were manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. In May 2019, the Veteran underwent a private PTSD evaluation. Her symptoms were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, impaired impulse control, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. The Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Finally, in March 2020, the Veteran underwent her most recent VA examination. The VA examiner diagnosed PTSD as the Veteran's only acquired psychiatric disorder. Here symptoms were depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, impaired impulse control, neglect of personal appearance and hygiene, intermittent ability to perform activities of daily living, including maintenance of personal hygiene. The Veteran was married and characterized her relationship as good. She spent her time going to appointments, watching movies, and playing games on her phone. The VA examiner concluded that the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 70 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. While the Veteran did experience symptoms contemplated by a 100 percent rating including intermittent ability to perform activities of daily living, including maintenance of personal hygiene, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Throughout the appeal period, the Veteran has maintained a good relationship with her husband. Her thought process has been intact, and she has denied hallucinations. In short, the evidence of record persuasively weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. 2. Entitlement to an effective date prior to October 7, 2010, for the grant of service connection for PTSD The Veteran contends that she is entitled to an earlier effective date for the grant of service connection for PTSD. Generally, the effective date of an award of a claim 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. VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. The date of receipt of a claim is the date on which a claim is received by VA. 38 C.F.R. § 3.1(r). On October 7, 2010, the Veteran filed a claim for entitlement to service connection for PTSD. The Veteran's claim was denied in a January 2011 rating decision. She filed a timely notice of disagreement in January 2011. In July 2012, the Veteran filed a supplemental claim for entitlement to service connection for PTSD due to military sexual trauma. The AOJ granted the Veteran's claim in a March 2018 rating decision. The Veteran was assigned a 50 percent evaluation effective October 7, 2010. In April 2019, the Veteran submitted a notice of disagreement with the initial evaluation and effective date for her PTSD. A thorough review of the record does not show that any written communication by or on behalf of the Veteran in which service connection for an acquired psychiatric disorder, to include PTSD was requested or was received prior to October 7, 2010. Additionally, the record does not show that the Veteran filed any evidence which could be construed as seeking entitlement to service connection for an either disease prior to the October 7, 2010, claim. As such, an effective date of October 7, 2010, is the appropriate effective date for the grant of service connection for PTSD. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400. Accordingly, as the weight of the evidence is persuasively against the claim, there is no doubt to resolve in the Veteran's favor. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.R. Watkins, 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.