Citation Nr: A25035751 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210809-177458 DATE: April 17, 2025 ORDER Entitlement to an initial rating of 70 percent for service-connected posttraumatic stress disorder (PTSD), with generalized anxiety disorder, attention deficit hyperactivity disorder (ADHD), unspecified depressive disorder, and opiate use disorder, is granted. REMANDED Entitlement to an initial rating higher than 70 percent for service-connected PTSD, with generalized anxiety disorder, ADHD, unspecified depressive disorder, and opiate use disorder, prior to June 3, 2020, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 3, 2020, is remanded. FINDING OF FACT Throughout the period on appeal, the severity, frequency, and duration of the Veteran's PTSD symptoms were productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to an initial rating of 70 percent for service-connected PTSD, with generalized anxiety disorder, ADHD, unspecified depressive disorder, and opiate use disorder, have 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 FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 2000 to December 2004. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). AMA became effective on February 19, 2019. Under the AMA, an AMA appeal may come to the Board in three ways: (1) through a RAMP rating decision; (2) an appeal of a rating decision with a notification letter dated on or after February 19, 2019; or (3) an appeal of a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) issued on or after February 19, 2019. 38 C.F.R. §§ 3.2400; 19.2(d). Under the AMA, a claimant has three administrative review options for an adverse decision which must be filed within one year from notice of a decision - 1) a request for Higher Level Review, 2) an appeal to the Board, or 3) the filing of a supplemental claim. 38 C.F.R. § 3.2500. Timely filing an appropriate administrative review option under 38 C.F.R. § 3.2500 may preserve an effective date from a claim which is continuously pursued. 38 C.F.R. § 3.2500(h)(1). VA intended the AMA to broadly recognize three types of claims: a supplemental claim, an initial claim, and a claim for increase. 84 Fed. Reg. 138, 139 (Jan 18, 2019). However, the Court has held that VA regulations governing administrative review options are claims processing rules, see Hall v. McDonough, 34 Vet. App. 329, 333 (2021), and recently held that a supplemental claim need not be filed on a specific VA form. See Chisholm v. Collins, No. 22-7028, 2025 U.S. App. Vet. Claims LEXIS 336, at *16-*20 (March 13, 2025). Procedurally, a March 2018 AOJ rating decision granted service connection for PTSD, and assigned an initial 10 percent rating effective April 8, 2014. In June 2018, the Veteran timely initiated a Legacy appeal by filing a Notice of Disagreement (NOD) with respect to the initial rating. See 38 C.F.R. §§ 20.200-204 (2017). The AOJ issued an SOC in December 2019. Under the Legacy system, a proper appeal to the Board would require a timely filed substantive appeal. 38 C.F.R. §§ 20.200, 20.202, 20.302(b). The AOJ simultaneously issued a rating decision implementing an award of a 70 percent rating effective June 25, 2019. The AOJ acknowledged the decision stemmed from a "Notice of Disagreement" in June 2018. Yet, the AOJ issued a notice of this decision on January 15, 2020, which provided the Veteran AMA administrative review rights. After this incorrect notice on January 15, 2020, the record reflects multiple AOJ rating decisions and multiple Veteran filings within one year of each AOJ rating action clearly seeking at least a 70 percent rating since April 8, 2014. The Veteran was never furnished an SOC as required by law, and the Veteran did not properly elect to opt-in to the AMA appellate system. Rather, he attempted to adhere to the appellate rights provided by AOJ rating decisions issued after February 2019. This procedural history was a specific point of discussion at the December 2024 hearing. The appeal made it to the Board by way of a 10182 filing which is an AMA appeal mechanism. The Veteran's attorney specifically elected to proceed with this appeal as an AMA appeal as long as the appeal period extended to 2014. The Veteran's attorney has essentially waived a right to an SOC, and specifically elected within the multiple rating decisions to elect an August 2020 AOJ rating decision for purposes of closing the evidentiary window. The Board finds continuous prosecution of the initial rating claim, and accepts an AMA appeal based on the invalid AOJ notice on January 15, 2020, which led the Veteran to believe that the AMA rules applied to the initial rating. Therefore, this matter is before the Board on appeal from an August 2020 AMA rating decision that considered the evidence of record on that date. Under the AMA, when a claimant seeks appellate review through the Board's hearing docket, the Board may consider the evidence of record at the time of the AOJ decision on appeal, additional evidence submitted on the date of the Board hearing (including testimony), and additional evidence submitted within 90 days of the hearing. 38 U.S.C. § 7113(b); 38 C.F.R. § 20.202(b)(2). In December 2024, the Veteran testified before a Veterans Law Judge. A hearing transcript is associated with the record. Entitlement to an initial rating of 70 percent for service-connected PTSD, with generalized anxiety disorder, ADHD, unspecified depressive disorder, and opiate use disorder. The Veteran appeals the denial of a higher rating for his service-connected psychiatric disorder. The Veteran's psychiatric disorder has been rated at 10 percent disabling under Diagnostic Code 9411, from April 8, 2014, to June 24, 2019, 70 percent from June 25, 2019, to January June 2, 2020, and 100 percent from June 3, 2020. All psychiatric disorders are evaluated under a general rating formula for mental disorders. 38 C.F.R. § 4.130. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Under the general rating formula, a 10 percent rating is warranted when there is 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 when there is 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 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 evaluation 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 situations (including work or a work-like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and "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." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Further, "§ 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." Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. Turning to the evidence, the Veteran filed a claim for service connection for psychophysiological disorder in August 2014. The Veteran was afforded a VA examination in February 2015. He was diagnosed with specified attention deficit/hyperactivity disorder and unspecified depressive disorder. The examiner, what symptoms are attributable to each diagnosis reasoning the following: [t]he lifelong inattention and problems with sustained focus (worse in childhood) are due to the ADHD. The depressive symptoms including social isolation, amotivation, sadness, chronic feelings of shame and low self-worth are part of the depressive disorder. The VA examiner summarized the Veteran's psychiatric disorder as causing 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 medication. During the examination, he reported he is currently dating and living with his significant other. In terms of social interaction, he states it consists of mostly his partner and some work acquaintances. Recreationally, he likes to write and is a personal trainer at a sporting club. The Veteran exhibited depressed mood as a symptom. The Veteran was afforded a VA examination in September 2017. He was diagnosed with ADHD and generalized anxiety disorder. The examiner determined he was unable to differentiate what symptoms are attributable to each disorder. The VA examiner summarized the Veteran's psychiatric disorder as causing 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 medication. The Veteran reported that he had trouble holding jobs because he constantly "self-sabotaged" and "didn't feel worthy." The Veteran exhibited anxiety as a symptom. In an October 2017 addendum opinion, the VA examiner opined the following: Vet noted that his sleep disturbance was a result of chronic anxiety and low self esteem connected to feeling like he was always doing a "poor job." Vet noted symptoms of ADHD included increased impulsivity, difficulty focusing, and problem with paying attention in addition to anxiety symptoms (feeling worries and stress and physical symptoms of anxiety) but was not able to make a connection to these symptoms in his early childhood history. In a June 2018 correspondence, the Veteran reported symptoms of severe anxiety, anger, depression, suicidal thoughts, and mild PTSD. In a November 2018 private medical opinion from the Veteran's treating clinician, he stated that the Veteran exhibited symptoms of self-sabotage, stress, routine job loss due to his psychiatric condition, substantial anxiety, severe depression, emotional breaks, and suicidal ideation. See also February 2020 and June 2020 Private Medical Opinions. In a May 2019 PTSD private disability benefits questionnaire (DBQ), his treating clinician diagnosed the Veteran with bipolar II disorder, adult ADHD, panic disorder without agoraphobia, and other psychological trauma. The private examiner summarized the Veteran's psychiatric disorder as causing total occupational and social impairment. The Veteran exhibited the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, impairment of short and long term memory, speech intermittently illogical, obscure, or irrelevant, impaired judgment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideation, grossly inappropriate behavior, impulsive conduct, misconduct, over-tasks, loss of restraint, and self-sabotage out of "boredom." In a June 2019 VA examination, the VA examiner summarized the Veteran's psychiatric disabilities as causing 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. The Veteran endorsed the following symptoms: 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 work like setting, inattention, concentration difficulties, hyperactivity, impulsivity, "self-sabotage," boredom, talkativeness, and bursts of energy. See also February 2020 and May 2020 VA Examinations. In a June 2020 PTSD private DBQ, his treating clinician summarized the Veteran's psychiatric disorder as causing total occupational and social impairment. The Veteran exhibited the following symptoms: depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, impairment of short and long term memory, circumstantial, circumlocutory, or stereotype speech, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals which interfere with routine activities, impaired impulse control, grossly inappropriate behavior, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Additional evidence includes VA treatment records and private treatment records that report similar symptoms detailed above. Upon review of the medical and lay evidence of record, the Board finds that throughout the period on appeal, the Veteran demonstrates symptoms that are contemplated by the 70 percent rating criteria. Therefore, a rating of 70 percent is warranted from April 8, 2014. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 70 percent for service-connected PTSD, with generalized anxiety disorder, ADHD, unspecified depressive disorder, and opiate use disorder, prior to June 3, 2020, is remanded. 2. Entitlement to a TDIU prior to June 3, 2020, is remanded. Review of the record reflects that, prior to the AOJ decision on appeal, the Veteran was self-employed. There were specific periods of full-time employment, part-time employment, and no employment. There is a medical opinion of total occupational impairment being present. The specific dates of employment and earnings are unavailable. The Veteran's earning statements and classification of employment are relevant to the adjudication of a 100 percent schedular rating under DC 9411 and entitlement to TDIU, under 38 C.F.R. § 4.16(a). As such, the Board finds that a remand is warranted to undertake development necessary to confirm the Veteran's occupational history and annual earnings during the appeal period. The Board may only remand for correction of a pre-decisional duty to assist error and "for correction of any other error by the agency of original jurisdiction in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating the appellant's claim." 38 C.F.R. § 20.802. Here, the Board finds that the AOJ's failure to obtain the Veteran's income earnings statement constitutes a pre-decisional error under the AMA. Accordingly, a remand is warranted to correct a duty to assist error that occurred prior to the rating decision on appeal. The Board notes that, at the hearing, the Veteran asserted that his self-employment constituted a protected environment. The Board cannot develop this theory raised after the AOJ adjudication. The Veteran and his counsel are advised of their duty to provide sufficient evidence for VA to find work was performed in a sheltered or protected work environment. LaBruzza v. McDonough, 37 Vet. App. 111, 125 (2024). The matters are REMANDED for the following action: 1. Send the Veteran a development letter requesting that he complete another VA Form 21-8940 which reports the income he has earned for each year since 2014. 2. Obtain the Veteran's record of employment income earnings from the United States Social Security Administration for every single year from 2014 until the present. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, Tomi 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.