Citation Nr: 24009477 Decision Date: 02/27/24 Archive Date: 02/27/24 DOCKET NO. 20-03 020 DATE: February 27, 2024 ORDER Effective April 28, 2017, an increased 70 percent initial rating (but no higher) for service-connected posttraumatic stress disorder (PTSD) is granted. An effective date prior to April 28, 2017, for the grant of service connection for PTSD, is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of doubt, the evidence is approximately balanced (nearly equal) in favor of finding the Veteran's service-connected PTSD symptoms cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. April 28, 2017 is the date that VA first received a claim for service connection for PTSD. There are no communications prior to April 28, 2017 reflecting an intent to file a claim for any psychological disorder. CONCLUSIONS OF LAW 1. Effective April 28, 2017, the criteria have been met for a 70 percent (but no higher) initial rating for service-connected PTSD. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (Code) 9411. 2. The criteria have not been met for an effective date prior to April 28, 2017 for the grant of service connection for PTSD. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to May 2001 and April 2009 to April 2010 with additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2018 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). After the Veteran filed her substantive appeal (VA Form 9), an August 2021 rating decision granted a 70 percent rating for her service-connected PTSD, effective July 13, 2021. Because that decision does not represent a full grant of the benefit sought, the issue is still before the Board. 1. Effective April 28, 2017, a 70 percent (but no higher) initial rating for service-connected PTSD is granted. Legal Criteria Disability ratings are based on average impairment in earning capacity resulting from a disability and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities. 38 U.S.C. § 1110; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The Veteran's PTSD is currently rated at 50 percent prior to July 13, 2021 and 70 percent thereafter. A 50 percent evaluation is warranted when there is occupational and social impairment with reduced reliability and productivity due to symptoms comparable to, for example: 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 evaluation is warranted where there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood). This may be due to such symptoms as, for example: 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. Id. The list of symptoms in the General Formula does not constitute an exhaustive list, but merely provides examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. The Board has reviewed all the evidence in the Veteran's record. Although the Board is required to provide reasons and bases supporting its decision, there is no need to discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence of record shows, or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Factual Background In an October 2010 VA treatment record, the Veteran denied any thoughts of killing herself. In an October 2010 VA mental health consult, the Veteran reported being depressed for the past several months, since going to Afghanistan. She reported depressed mood, sleep disturbances, crying spells, decreased appetite, social isolation, anger outbursts, concentration difficulties, and lack of motivation. She was diagnosed with depressive disorder and given a generic suicide prevention plan. The Veteran attended a July 2017 VA examination for her mental health condition. The examiner diagnosed PTSD and indicated the Veteran's PTSD symptoms cause occupational and social impairment due to mild or transient symptoms which decrease work efficiency. The Veteran reported that she is currently employed in a youth development center, is unmarried, and has three children. The Veteran's symptoms were recorded as depressed mood, anxiety, and chronic sleep impairment. The Veteran denied suicidal or homicidal ideation, and delusions or hallucinations. A July 2017 VA treatment record noted the Veteran works in a stressful environment and is the sole parent of three children. The Veteran's mood was depressed, and she denied suicidal ideation. The Veteran also reported significant sleep deprivation due to her PTSD. In a June 2021 VA treatment, the Veteran indicated that she had wished she was dead or would not wake up from sleep. She also reported thoughts of killing herself in the past month. The Veteran attended a July 2021 VA examination for her mental health condition. The examiner checked that box indicating the Veteran's PTSD symptoms cause "occupational and social impairment with reduced reliability and productivity." The Veteran reported she is still raising her three children and works full time with the Georgia Department of Juvenile Justice. The Veteran's symptoms were recorded as depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, flattened affect, disturbance of mood and motivation, difficulty establishing and maintaining relationships, and difficulty adapting to stressful circumstances. In an August 2021 rating decision, the AOJ increased the disability rating for the Veteran's PTSD to 70 percent, effective the date of the July 2021 VA examination. Analysis Affording the Veteran the benefit of doubt, the Board finds the Veteran's service-connected PTSD more closely approximated the rating criteria for a 70 percent rating for the entire period on appeal. The Board finds the Veteran's statements and the VA examinations throughout the appeal period are competent and credible evidence and affords them significant probative weight. The Board finds the evidence of record indicates the Veteran's PTSD has a significant impact on her work and social relationships. The Veteran has been short tempered, chronically sleep impaired, depressed, and anxious, throughout the appeal period. The Board finds the Veteran's PTSD has caused occupational and social impairment with deficiencies in most areas, throughout the appeal period. However, the Board finds a higher rating is not warranted because the Veteran has not been totally occupationally and socially impaired during this period. As evidenced throughout the record, she takes care of her three children, has lived with other family members, and has worked at the same job for many years. While her PTSD may cause some interference with these social and occupational interactions, the Board finds the Veteran is still able to maintain some work and social activities and thus is not totally occupationally and socially impaired. Accordingly, for these reasons, the Board finds that a 70 percent (but no higher) disability rating for the entire period on appeal is warranted. 2. An effective date prior to April 28, 2017 for the grant of service connection for PTSD is denied. Legal Criteria Except as otherwise provided, the effective date of an evaluation and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2019). An initial claim includes a new claim requesting service connection and a claim for increase in a disability evaluation rating. 38 C.F.R. § 3.1(p) (2019). The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). Prior to March 24, 2015, a claim was a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2018); 79 Fed. Reg. 57,696 (Sept. 25, 2014). The mere presence of the medical evidence does not establish an intent on the part of the veteran to seek service connection for that disability; the veteran must have asserted the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). The Board has reviewed all evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate and the analysis will focus on what the evidence shows, or fails to show, as to the claims. Factual Background and Analysis A July 2010 VA medical treatment record noted that the Veteran's VA benefits status was "not filed." The record also indicated she was deployed to Afghanistan, returning in April 2010 and appeared depressed as evidenced by tearfulness, inability to sleep without OTC medication, stated depression, irritability, and anger control issues. A February 2017 VA mental health treatment record noted that the Veteran had a discussion relating to filing a claim for benefits with a VA counseling coordinator. VA first received the Veteran's formal claim for benefits on April 28, 2017. Subsequently, a September 2018 rating decision granted service connection for PTSD. To establish an effective date earlier than April 28, 2017 for the grant of service connection for PTSD, the Veteran would need to show (1) that she had a prior claim of service connection for a psychological disorder that remained pending (that is, had not been adjudicated) and, if so, (2) that this disability first manifested before April 28, 2017. See 38 C.F.R. § 3.400. The Board acknowledges that the record clearly shows the Veteran was diagnosed with a psychiatric disorder in 2010 after returning from deployment in Afghanistan. However, there is no indication at that time that the Veteran expressed to VA an intent to file or that the Veteran did file a claim for benefits. In fact, the July 2010 VA treatment record noted that the Veteran's VA benefits status was "not filed." The Board carefully reviewed the VA records since discharge and did not find any indication that the Veteran informed VA that she wished to apply for VA benefits. Even considering the February 2017 VA mental health note regarding the information provided to the Veteran, this document falls short of a formal claim for benefits, as required. See 38 C.F.R. § 3.1(p) (2018) (from March 24, 2015, a claim for benefits must be filed on a designated VA form); 79 Fed. Reg. 57,696 (Sept. 25, 2014). Further, neither the Veteran nor her representative have pointed to any evidence or made any assertion that any specific prior effective date is warranted. The Veteran is reminded that VA's duty to assist is a two-way street; if the Veteran wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As noted above, the mere presence of medical evidence does not establish an intent on the part of the veteran to seek service connection for that disability; the veteran must have asserted the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). Unfortunately, in this case, there is simply no probative evidence that the Veteran intended to file a disability compensation claim of any kind prior to the formal claim she submitted on April 28, 2017. Consequently, regardless of when the Veteran's psychiatric disorder first manifested, there is simply no basis for awarding an effective date prior to April 28, 2017 for the grant of service connection for PTSD, and the appeal must be denied. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Williams, Michael E. (BVA) 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.