Citation Nr: 24016293 Decision Date: 04/16/24 Archive Date: 04/16/24 DOCKET NO. 20-29 213 DATE: April 16, 2024 ORDER An earlier effective date prior to June 11, 2017, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. An initial disability rating in excess of 70 percent for PTSD prior to January 31, 2018, is denied. FINDINGS OF FACT 1. A September 22, 2008, claim for an acquired psychiatric disorder was originally denied in a rating decision dated December 19, 2008, which the Veteran did not timely appeal and it became final a year later. 2. A claim for PTSD was again denied in a rating decision April 14, 2014, with a date of claim of December 22, 2013. The Veteran did not timely appeal and it became final a year later. 3. On June 11, 2017, VA received the Veterans intent to file a claim for compensation; and the Veteran followed that with a VA 21-526EZ, Fully Developed Claim (Compensation) on August 23, 2017, for PTSD, anxiety, and depression, new October 2017 statement from the Veteran, and a new November 2017 PTSD exam; and service connection for PTSD was reopened and granted on December 6, 2017, with an effective date of June 11, 2017. 4. Prior to January 31, 2018, the evidence of record does not support a finding that the Veteran's PTSD resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date prior to June 11, 2017, for the award of service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. 2. The criteria for an initial disability rating in excess of 70 percent for PTSD prior to January 31, 2018, 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 2004 to September 2008 and in the United States Air Force from May 2010 to October 2010, to include service in Iraq and Kuwait during the Persian Gulf War while serving in the Marines. This case comes to the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, OH. In May 2020, the Board remanded the Veteran's claim for additional development. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. An earlier effective date prior to June 11, 2017, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. The Veteran has requested an effective date of the day following Marine Corps discharge, September 8, 2008, or the date he was prescribed Sertraline for PTSD, January 26, 2009, arguing that PTSD did not start in 2017, but 9 years earlier during active Marine service. Turning to the relevant laws and regulations, unless specifically provided otherwise in a statute, the effective date of an award based on an original claim for compensation benefits shall be 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. The effective date of an award of disability compensation shall be the date following separation from service or the date entitlement arose if the claim is received within one year of separation, and granted, otherwise the date of claim or the date entitlement arose, whichever is later, if granted. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400 (b)(2). The effective date for an award based on a reopened claim shall be the "[d]ate of receipt of the claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (r). The effective date of an award based on a claim of increase for compensation "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application." 38 U.S.C. § 5110(a). In general, "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). A claim is a "written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement to a specific benefit." 38 C.F.R. § 3.1(p). Rating decisions from which an appeal is not perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § § 20.1103. An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § § 20.200. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has made it clear that an appellant generally can attempt to overcome the finality of a prior final decision of the RO or Board in only one of two ways: by a request for revision of an RO or Board decision based on clear and unmistakable error (CUE), or by a claim to reopen based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 7111 (a) ("A decision by the Board is subject to revision on the grounds of [CUE]. If evidence establishes the error, the prior decision shall be reversed or revised."). Of the two options for challenging a final decision, only a request for revision premised on CUE could result in the assignment of an earlier effective date for an award of service connection, because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received. 38 U.S.C.§ 5110 (a); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of CUE, [the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (holding that once a decision is final, a freestanding claim for an effective date earlier than the date on which the claim was received impermissibly attempts to vitiate the rule of finality); see also Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that failure to consider all possible theories that may support a claim does not serve to vitiate the finality of a decision). In December 2008 and April 2014, the RO denied the Veteran's claim for service connection for anxiety attacks and PTSD respectively. The Veteran did not appeal the decisions. Unappealed VA decisions became final one year later in December 2009 and April 2015 respectively. See 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). As such, this is no longer the appropriate point from which to determine the effective date of an award unless a claim for clear and unmistakable error (CUE) is submitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Following the two final decisions denying an acquired psychiatric disability, the Veteran submitted a June 11, 2017, intent to file a claim for compensation and correspondence in October 2017 and a PTSD examination in November 2017 were found new and material to reopen and grant the PTSD service connection claim at 70 percent disability rating in December 2017. The effective date for PTSD service connection is the date VA received the intent to file the claim, June 11, 2017. While the Veteran claims the service connection for PTSD should date back to the day after he left service, September 8, 2008, since his PTSD started in service, or the day he was prescribed Sertraline, January 26, 2009, which proves he had PTSD from that date, that is not possible in this case under the law and regulations as explained above. Grant of service connection must be started with a claim. The Board notes that it is not the presence of a disability that controls. The Court has long held that the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[M]ere receipt of medical records cannot be construed as an informal claim."); Brannon v. West, 12 Vet. App. 32, 35 (1998) ("[T]he Board is not required to conjure up issues that were not raised by the appellant."). There was a claim filed on September 22, 2008. That claim was within one year of the Veteran's leaving active Marine Corps service on September 7, 2008. However, as explained above that claim was denied on December 19, 2008, and the Veteran did not appeal the decision within a year, and that decision became final. It was not until June 11, 2017, after two finally decided claims denying service connection that the Veteran submitted a new intent to file a claim for an acquired psychiatric disorder. Under the law and regulation, that is the earliest possible date for which service connection can be granted under the circumstances of this case. In this case the date or receipt of the intent to file a claim, June 11, 2017, is later than the date entitlement arose, which was likely one of the days the Veteran claims should be the effective date. The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105; 38 C.F.R. § 3.105(a). This is what happened in this case. Two earlier claims for service connection became final denials and are no longer the appropriate point from which to determine the effective date of an award unless a claim for clear and unmistakable error (CUE) is submitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board has reviewed the record to determine whether any informal claim of service connection for PTSD or another acquired psychiatric disorder was filed prior to June 11, 2017, and after the most recent final denial decision on the issue on April 14, 2014, that can be construed as an informal or formal claim for compensation benefits. The Board finds that there is no such document in the claims file. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received, impermissibly attempts to vitiate the rule of finality). Based on the facts of the case, the earliest possible effective dated for service connection of PTSD or any acquired psychiatric condition is June 11, 2017, the date of intent to file a claim, and the Veteran's claim for an earlier effective date based on an earlier date when entitlement arose must be denied. 2. An initial disability rating in excess of 70 percent for PTSD prior to January 31, 2018 The Veteran contends that his service-connected PTSD warrants a higher disability rating than 70 percent prior to January 31, 2018. As of January 31, 2018 the Veteran is in receipt of a 100 percent schedular rating for PTSD, as such the period on appeal is limited to the period prior to January 31, 2018. The issue in this appeal is whether the Veteran's associated PTSD symptoms caused the level of impairment required for a disability rating of 100 percent for the period from June 11, 2017 until January 31, 2018. 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). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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. By way of introduction, the Board will first discuss the Veteran representative's contention put forth in a January 2022 Appellate Brief, where he argues that the Veteran takes psychotropic medications as well as self-medicates with cannabis and alcohol, and that the rating scale does not contemplate the use of medication; therefore, the Board must rate the issue based on the absence of medication. The Board disagrees with this conclusion, because DC9201-9440 Mental Disorders (General Rating Formula) specifically says, "A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (0 percent) rating." It further says, "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, a 10 percent rating." The rating schedule does contemplate the use of medication, and a rating is proper when based on the use of medication to control psychiatric symptoms. Consequently, Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply here. It follows that the Board's evaluation of the Veteran's service-connected psychiatric problems may include the ameliorative effects of his psychiatric medications documented in the record. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable). VA CAPRI records added to the file in September 2017 note a history of suicidal thoughts, following failure of the Veteran's second marriage in 2012 without plan or intent, and endorsed his children as a protective factor. The Veteran also talked about needing to abstain from drinking alcohol and smoking weed. At VA treatments, the Veteran is described as cooperative, alert, and oriented, with a pleasant and engageable demeanor. His thought process is described as logical, linear, and coherent; judgment is good; cognition is grossly intact; attention span is adequate; recent and remote memory is intact; and the Veteran is taking medication as prescribed. Veteran describe home life as chaotic, since he and his wife moved in with his sister and her kids, with 8 children in the home under the age of nine. The Veteran was afforded a VA examination in November 2017. The examiner reviewed the record and examined the Veteran and diagnosed PTSD. The examiner opined the symptoms resulted in occupational and social impairment with reduced reliability and productivity. The Veteran indicated he had a positive relationship with his father and a strained relationship with his mother. He was married for the 3rd time and described a positive relationship. He had 3 sons with whom he had typical relationships. He did not describe any friendships. The Veteran reported being hospitalized during service for psychiatric reasons. He described being hospitalized once after service for a panic attack. The Veteran denied active suicidal or homicidal ideation or intent but did endorse passive thoughts of suicide without a plan or intent. The Veteran took medication and was in psychotherapy. Symptoms included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function independently, chronic sleep impairment, disturbances of motivation or mood, difficulty establishing and maintaining effective work and social relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control such as unprovoked irritability with periods of violence. He cried during the evaluation but was described as cooperative and well groomed. The November 2017 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating (suicidal ideation, impaired impulse control (such as unprovoked irritability with periods of violence, and near-continuous panic), and no listed symptoms associated with a 100 percent rating. The Veteran also had symptoms that are listed with a 30 percent rating (depressed mood, anxiety, suspiciousness, and chronic sleep impairment) and 50 percent rating (panic attacks more than once a week, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships). A January 2018 letter from his treating social worker noted that the Veteran was treated for PTSD. The social worker opined that he was unable to maintain employment as working would be detrimental to his mental health. In the remarks section, the examiner mentioned that the Veteran needs to seek follow up treatment, requires medication management and continued psychotherapy to assist with mental health symptoms. The examiner also noted the Veteran does not appear to pose any threat of danger to self or others. The examiner also noted that for the claimed conditions of anxiety and depression, these conditions are symptoms of the Veteran's PTSD diagnosis. The November 2017 examiner summarized the Veteran's level of occupational and social impairment regarding all mental diagnoses as occupational and social impairment with reduced reliability and productivity, which corresponds most closely to a 50 percent disability rating. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that some of these symptoms were present nearly daily and would increase in severity like when all the kids in the house were having a bad day. Further, nightmares of sniper shootings in Iraq discussed in October 2017 correspondence which result in panic or depression affecting his ability to function is contemplated by the assigned 70 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is like persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating during the period on appeal. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the November 2017 VA examination. The Board also 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. Mental status examinations in VA treatment records and the November 2017 VA examination indicate that the Veteran was crying during the examination, was cooperative, and was appropriately groomed. During the November 2017 VA examination, the Veteran reported taking psychotropic medications and attending individual psychotherapy. While the Veteran may experience some symptoms contemplated by a 100 percent rating-the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating prior to January 31, 2018. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 70 percent or lower rating. Further, while the Veteran has been granted a total disability rating based on individual unemployability due to service-connected disability, from June 11, 2017, to January 31, 2018, the Veteran was not totally socially impaired. While September 2017 CAPRI treatment records show the Veteran reported perceived difficulties with living in a house full of young children, prior and subsequent treatment records contain reports that the Veteran was married living with a mixed and extended family at home with 8 young children and assisting his wife with learning to better manage them. In fact, during the November 2017 VA examination, the Veteran reported teaching his wife techniques he was learning in therapy that could help her with handling the kids more effectively. (Continued on the next page) ? While the Veteran believes the Board should not consider the ameliorative effects of medication when evaluating PTSD, the Board notes that the plain language of the criteria under the General Rating Formula for Mental Disorders specifically contemplates the effects of medication. Consequently, Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply, and the Board's evaluation of the Veteran's PTSD includes the ameliorative effects of medication. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). 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 prior to January 31, 2018. The criteria for a 100 percent rating prior to January 31, 2018, are not met and the appeal must be denied. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Black, Jeffrey W. (he/him/his) 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.