Citation Nr: A25035221 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240211-415292 DATE: April 16, 2025 ORDER Entitlement to an effective date earlier than February 17, 2023, for service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The Veteran filed an original claim seeking entitlement to service connection for a psychiatric disability on November 27, 2013, more than one year after separation from service and did not continuously pursue the claim for service connection for a psychiatric disability after an August 2014 denial. The May 2023 VA Form 526 EZ processed by the AOJ as a formal claim was received more than one year after the final August 2014 rating decision issued by the AOJ. The effective date assigned cannot be earlier than the date VA received the intent to file related to the formal claim and there is no legal basis for an earlier effective date. 2. During the period under review, the Veteran's psychiatric disability symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but not total social and occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than February 17, 2023, for service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107, 5110(a), 7105(b)(1); 38 C.F.R. §§ 19.52, 3.105, 3.155, 3.160, 3.400, 3.2500, 3.2501, 20.1103. 2. The criteria for entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 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 from May 2009 to June 2010. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2023 Department of Veterans Affairs (VA) Higher-Level Review rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In February 2024, the Veteran filed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected the Direct Review docket. Under the Direct Review docket, the Board reviews the claims based on the evidence of record at the time of the rating decision appealed. 38 C.F.R. § 20.303. Under Direct Review, evidence submitted after the date of notification of the rating decision is not reviewable by the Board. 38 C.F.R. § 20.301. Evidence was added to the claims file after the rating decision on appeal, during a period of time when new evidence was not allowed for Board review under the Direct docket option. The Board cannot consider that evidence in this decision. However, the Veteran may file a Supplemental Claim and submit or identify that evidence. If the evidence is new and relevant, VA will issue another decision on the claim considering the new evidence, in addition to the evidence previously considered. 38 C.F.R. §§ 3.2501, 20.300. The Board notes that issues of entitlement to an earlier effective date for service connection for tinnitus, earlier effective date for service connection for right ear hearing loss, entitlement to an initial rating in excess of 10 percent for tinnitus, entitlement to a rating in excess of 0 percent for right ear hearing loss, and entitlement to service connection for erectile dysfunction were on appeal under a separate Board docket number and are addressed in a separate Board decision. 1. Entitlement to an effective date earlier than February 17, 2023, for service connection for posttraumatic stress disorder (PTSD) The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the effective date will be the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. All claims governed by VA's adjudication regulations must be filed on standard forms prescribed by VA, regardless of the type of claim or posture in which the claim arises. The Veteran may file an intent to file a claim for benefits, but the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. 38 C.F.R. § 3.155. However, prior to March 24, 2015, the standardized forms were not required. A claimant may continuously pursue a claim by timely and properly filing a supplemental claim within one year of a VA decision. The claim must be submitted on VA form 20-0995, Decision Review Request: Supplemental Claim, and include new and relevant evidence. 38 C.F.R. §§ 3.2500, 3.2501. If a claimant continuously pursues an issue by timely filing in succession a supplemental claim, or other review options including a request a higher-level review, an appeal to the Board, or a notice of appeal to the United States Court of Appeals for Veterans Claims, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later. Continuous pursuit requires any review option be filed within one year of the issuance of the decision with which the Veteran disagrees. 38 C.F.R. § 3.2500(h)(1). However, if a claim is not continuously pursued and a supplemental claim is received more than one year after the date on which the AOJ issues a notice of a decision, or the Board issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2). On November 27, 2013, the Veteran filed an original claim for service connection for a psychiatric disability. An August 2014 AOJ rating decision denied service connection for a psychiatric disability. The Veteran did not submit a notice of disagreement or submit new and material evidence within one year of the August 2014 rating decision. Therefore, the August 2014 rating decision became final. 38 U.S.C. § 7105(b)(1); 38 C.F.R. §§ 19.52, 20.1103; Bond v. Shinseki, 659 F.3d 1362 (2011). In February 2023 correspondence, VA indicated the Veteran's intent to file a claim for a psychiatric disability was received on February 17, 2023. On May 14, 2023, more than one year after the August 2014 rating decision, the Veteran filed a claim for service connection for a psychiatric disability on VA form 21-526 EZ, Fully Developed Claim, following the previous final denial. However, a supplemental claim is required to reopen a previous denied claim. On May 24, 2023, the Veteran was properly notified by VA that the claim filed on VA 21-526 EZ was incomplete and indicated that VA regulations required a complete claim to be filed on VA Form 20-0995, Decision Review Request: Supplemental Claim within 12 months. However, a supplemental claim was not received by VA. The AOJ processed and adjudicated the VA Form 21-526 EZ as a formal claim and a July 2023 AOJ rating decision denied service connection. In July 2023, the Veteran filed a request for a higher-level review and an August 2023 rating decision identified a duty to assist error. The AOJ requested development and converted the July 2023 request for higher-level review into a supplemental claim. In a September 2023 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), the Veteran established service connection for PTSD and a 70 percent rating was assigned, effective February 17, 2023, the date VA received the intent to file a claim for service connection for a psychiatric disability. 38 C.F.R. § 3.160. The Board notes that the claim received by VA on May 14, 2023, was not a supplemental claim and was an incomplete claim accepted by VA. The Veteran was properly notified by VA in May 2023 correspondence that the claim for service connection for PTSD was filed on the incorrect form and requested the Veteran file VA-Form 20-0995, Decision Review Request: Supplemental Claim, pursuant to VA regulations. A supplemental claim was not received by VA related to the claim for service connection for a psychiatric disability and there has not been continuous pursuit of the claim. However, the Board finds that RO's acceptance of the May 14, 2023, VA Form 21-526EZ, as a formal claim for the adjudication of service connection for a psychiatric disability is a favorable finding that the Board will not disturb. 38 CFR 3.155. The Board also notes that the Veteran's claim was not continuously pursued, as supplemental claim was not received within one year after the August 2014 rating decision issued by the AOJ. Therefore, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the intent to file date of February 17, 2023. 38 C.F.R. § 3.2500(h)(2). Further, previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105. The Board finds that there is no legal basis for the assignment of an earlier effective date prior to February 17, 2023, for service connection for PTSD. The Veteran did not continuously pursue the claim, and applicable regulations do not allow for an earlier effective date. The effective date assigned of February 17, 2023, is based on the date VA received the intent to file a claim that followed the previous August 2014 final denial, and the effective date shall not be earlier than February 17, 2023. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Accordingly, the Board finds that the Veteran is already in receipt of the earliest possible effective date of February 17, 2023, for service connection for PTSD based on the date VA received the intent to file a claim. The Veteran's claim for service connection was received by VA more than one year following a final denial for service connection for a psychiatric disability. Therefore, the appeal must be denied. 2. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. A September 2023 AOJ rating decision established service connection for PTSD, and assigned an initial 70 percent rating, effective February 17, 2023. The Veteran's posttraumatic stress disorder (PTSD) has been rated under the provisions of Diagnostic Code 9411. Under the provisions of Diagnostic Code 9411, a 10 percent rating is warranted for 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 30 percent rating is warranted for 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often),chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted 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 warranted for 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 work like 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. The symptoms listed in VA's General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis will focus on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran's PTSD is currently assigned a 70 percent rating as of February 17, 2023. During the period under review, the Veteran contends that the 70 percent rating assigned for the PTSD did not accurately compensate the severity of the disability and the Veteran asserts that a higher rating is warranted. After review of the relevant medical and lay evidence of record, the Board finds that during the period under review, the Veteran's psychiatric disability was productive of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Therefore, the Board finds that during the period under review the Veteran's PTSD warranted no more than a 70 percent rating and the claim for a rating in excess of 70 percent must be denied. An April 2023 audiology note indicated that the Veteran reported being retired. At a June 2023 VA hearing loss examination, the Veteran reported current employment working as a fence installer. At a September 2023 VA initial posttraumatic stress disorder examination, the Veteran was found to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran reported being divorced with two children and indicated he lived with his girlfriend of 10 years and her two children. The Veteran reported hobbies that included studying history, reading, arrowhead hunting, and visiting with friends and family on a semi-consistent basis, in addition to sacrificing his own time to do things for others. The examiner indicated the Veteran experienced symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once per week; chronic sleep impairment; mild memory loss, such as forgetting names, directions, and recent events; impairment of short- and-long term memory, for example, retention of only highly learned material while forgetting to complete tasks; flattened affect; impaired judgment; disturbances of motivation and mood; difficulty adapting to stressful circumstances, including work or a work like setting; suicidal ideation; impaired impulse control, such as unprovoked irritability with periods of violence; and neglect of appearance and hygiene. The Veteran was described as actively engaged in the examination but was anxious and fidgety with impaired concentration and poor judgment. The examiner also indicated the Veteran's affect was congruent, with good eye contact and coherent thought processes. No homicidal ideation was noted, although suicidal ideation was noted without intent or plan. The Veteran reported being currently unemployed and having a long work history with a fence company on and off for fourteen years. The examiner indicated that the Veteran was competent to manage his own financial affairs. During the period under review, the Board finds that the evidence of record shows that the Veteran's psychiatric disability more nearly approximates the criteria for a 70 percent rating, under the Diagnostic Code 9411. The Board finds that the psychiatric disability did not meet or more nearly approximate the criteria for a 100 percent rating as total occupational and social impairment were not demonstrated as required for a 100 percent rating. During the period under review, the record shows that the Veteran continued to work on and off for fourteen years as a fence installer, although there is some evidence that the Veteran may have stopped working and retired from employment as a fencing installer for some periods. The Veteran has maintained a long-term 10-year relationship with his girlfriend and her two children and has maintained other familial relationships and friendships. The record also shows that the Veteran attends physical therapy sessions for other medical conditions, and participates in hobbies that include arrowhead hunting, which is evidence against a finding of total social impairment. The Board finds that total occupational and social impairment have not been shown and that the evidence does not show persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting others; disorientation to time or place; or memory loss for names of closest relatives, own occupation, or own name. The Board finds that while the symptoms listed in VA's General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects that would justify a particular rating, the Veteran's overall disability picture during the period under review was more nearly approximated by the criteria set forth for a 70 percent rating, pursuant to Diagnostic Code 9411. The Board notes that the examiners that conducted mental status evaluations did not describe the Veteran's psychiatric disability as total occupational and social impairment. The Veteran has not displayed persistent delusions or hallucinations; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of closest relatives, own occupation, or own name commensurate with a 100 percent rating. While the Veteran may be currently unemployed or retired, the record shows significant evidence of continued familial relationships, to include a continued long-term relationship for 10 years, in addition to maintaining other familial relationships and friendships, although possibly strained, which precludes a finding of total social impairment. The record also shows the Veteran's participation in hobbies and other activities, to include attending physical therapy which requires some level of social interaction. The Board notes that total social and occupational impairment is required to assign a 100 percent schedular rating. Therefore, as both total occupational impairment and social impairment are required for a 100 percent schedular rating, the Board finds that a 100 percent schedular rating is not warranted during the period on appeal, as total social and occupational impairment has not been shown and is required for the assignment of a 100 percent schedular rating. Additionally, in considering whether the Veteran is entitled to a higher rating, the Board has carefully considered the contentions and assertions that the psychiatric disability was of such severity as to warrant a 100 percent schedular rating. The Board must analyze the credibility and probative value of the evidence, account for the evidence that is found to be persuasive or unpersuasive and provide the reasons for the rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is competent to report symptoms, such as anxiety, and depressed mood, because that requires only personal knowledge as it comes to the Veteran through the senses. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the evidence of record does not demonstrate symptoms that more nearly approximate a higher rating under the General Rating Formula for Mental Disorders. The Board finds that while some suicidal ideation was shown, the weight of the evidence does not support a finding that the Veteran was a persistent danger of hurting himself or others, such as would support the assignment of a 100 percent schedular rating. In addition, the Board finds that the evidence does not suggest that the Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disability such that a claim for TDIU is implied. Although the most recent evidence shows that the Veteran was not working, the evidence does not suggest that was the result of service-connected disability. The evidence shows that the Veteran retired and was voluntarily not working, then returned to work for some unspecified period of time, and then was not working again. The evidence does not suggest that the Veteran not working was due to service-connected disability. During the period under review, the Board finds the weight of the evidence of record is against the assignment of a rating in excess 70 percent for PTSD. The Board finds the evidence is not in approximate balance, the criteria for higher ratings are not met or more nearly approximated, and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim for an increased rating must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Malec, Jennifer L., Associate 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.