Citation Nr: 1760251
Decision Date: 12/27/17 Archive Date: 01/02/18

DOCKET NO. 14-10 854 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1. Entitlement to an effective date earlier than August 17, 2010, for the grant of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD).

2. Entitlement to an evaluation in excess of 30 percent from June 27, 2008, to January 7, 2013; April 1, 2013 to April 11, 2013; and to an evaluation in excess of 50 percent from April 12, 2013 to December 29, 2013; and from March 1, 2014 continuing thereafter for posttraumatic stress disorder with major depressive disorder (MDD).

REPRESENTATION

Veteran represented by: Vietnam Veterans of America

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

S. Anwar, Associate Counsel

INTRODUCTION

The Veteran had active service from August 1966 to February 1972.

This matter comes before the Board of Veterans’ Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In October 2016, the Veteran testified at a Videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file.

The Veteran contends his August 2011 withdrawal of his then-pending appeal for a denial of service connection for PTSD is not valid and that his now service-connected PTSD with MDD disability should be effective as of June 27, 2008. Since the Board will grant the Veteran’s claim for an earlier effective date, the period on appeal with regards to the issue of the Veteran’s initial evaluation of his PTSD with MDD is as listed on the title page.

During the pendency of the appeal, a January 2014 rating decision increased the rating for the Veteran’s PTSD with MDD disability to 50 percent effective April 12, 2013, the date of the Veteran’s VA medical examination. Since this evaluation is not the maximum available benefit and the claimant has not withdrawn the appeal, the issue remains in appeal status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

Effective April 29, 2014, the Veteran is in receipt of a 100 percent schedular evaluation for individual unemployability, and separate grants of special monthly compensation on various bases.

Pursuant to VA’s duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence, and conducted any appropriate medical inquiry. The appeal is ready for appellate review. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system.

FINDINGS OF FACT

1. Resolving all reasonable doubt in favor of the Veteran, the Veteran did not intend to withdraw his then-pending appeal for denial of service connection for PTSD in August 2011.

2. With the exception of those periods of hospitalization during the periods on appeal, the Veteran’s posttraumatic stress disorder with major depressive disorder manifested with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks between June 27, 2008, to April 11, 2013; and as occupational and social impairment with reduced reliability and productivity since April 12, 2013.

CONCLUSIONS OF LAW

1. The criteria for an effective date of June 27, 2008, but no earlier, for the grant of service connection for PTSD have been met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017).

2. The criteria for an evaluation in excess of 30 percent from June 27, 2008, to January 7, 2013; and from April 1, 2013 to April 11, 2013; and to an evaluation in excess of 50 percent from April 12, 2013 to December 29, 2013; and from March 1, 2014 continuing thereafter for posttraumatic stress disorder with major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Earlier Effective Date

The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400.

Appellate review of a rating decision is initiated by a Notice of Disagreement (NOD) and perfected by filing a completed Substantive Appeal (VA Form 9) once a Statement of the Case (SOC) has been furnished. 38 U.S.C. § 7105 (a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104 (a).

The Veteran filed a claim of service connection for PTSD on June 27, 2008. He timely filed an NOD to the September 2008 denial of his claim, and perfected the appeal after the October 2009 SOC. In March 2010, the RO issued a supplemental SOC.

On August 17, 2010, the Veteran submitted a Supplemental Claim (Form 21-526b) for service connection for PTSD and glaucoma. The RO acknowledged receipt of the supplemental claim in a January 2011 letter, and noted that the Veteran had an appeal pending for this same condition.

On August 8, 2011, the Veteran submitted a request to withdraw all pending appeals. The RO acknowledged the withdrawal, and cancelled a scheduled VA medical examination. However, on August 9, 2011, the Veteran submitted a request to reopen a previously denied claim for service connection for PTSD. The RO acknowledged a claim for service connection for PTSD in an October 2011 letter, but did not clarify for which claim filed. The claim was granted in a May 2012 rating decision with an effective date of August 17, 2010, the date the Veteran filed the supplemental claim.

At the October 2016 hearing, the Veteran testified he did not intend to withdraw his claim for service connection for PTSD in August 2011. He stated he did not understand what he signed at the time, although he later confirmed his signature on the form.

The Board will grant the claim. Although the RO stated in its January 2011 letter that the newly-filed claim was for a condition that was pending on appeal, it nonetheless granted service connection, and assigned an effective date as of the supplemental claim rather than the date the original claim pending was filed. In addition, the evidence indicates the Veteran did not intend to withdraw his claim. Almost simultaneously, the Veteran clearly submitted a supplemental document indicating that he was continuing to pursue a claim of service connection for PTSD the day after submitting his withdrawal request.

An effective date of June 27, 2008 is granted.

Increased Ratings

Given the Board’s granting of an earlier effective date for service connection for PTSD, the Board clarifies the rating periods at issue. The psychiatric disorder is now evaluated as 30 percent disabling from June 27, 2008 to January 7, 2013; 100 percent from January 8, 2013 to March 31, 2013 for a period of hospitalization; 30 percent from April 1, 2013 to April 11, 2013; 50 percent from April 12, 2013 to December 29, 2013; 100 percent from December 30, 2013 to February 28, 2014 for a period of hospitalization; and 50 percent from March 1, 2014 continuing thereafter.

Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should 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. See 38 C.F.R. § 4.7.

For claims for increased ratings which arise out of an initial grant of service connection, the Board must consider the application of “staged” ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999).

In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The General Rating Formula for Mental Disorders is as follows:

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; memory loss for names of close relatives, own occupation, or own name.

A 70 percent rating is assigned 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 a work like setting); inability to establish and maintain effective relationships.

A 50 percent rating is assigned 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 30 percent rating is assigned 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).

38 C.F.R. § 4.130 (2016).

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they 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, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DCs. See id. VA must consider all symptoms of a claimant’s disorder that affect his or her occupational and social impairment. See id. at 443. If the evidence demonstrates that a claimant has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id. VA must consider all of the claimant’s symptoms and resulting functional impairment as shown by the evidence in assigning the appropriate rating, and will not rely solely on the examiner’s assessment of the level of disability at the moment of examination. See id.

The Veteran’s records include evaluations based on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes Global Assessment Functioning (GAF) scores. GAF scores are based on a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” DSM-IV; see Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996).

According to DSM-IV, a score of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers).” A score of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Id. A score of 31-40 indicates “[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work).” Id. The Court has found that certain scores may demonstrate a specific level of impairment. See Richard, 9 Vet. App. at 267; see also Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (observing that a GAF score of 50 indicates serious impairment).

Although a medical professional’s classification of the level of psychiatric impairment reflected in the assigned GAF score is probative evidence of the degree of disability, such a score is not determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See VAOPGCPREC 10-95 (March 31, 1995).

A. June 27, 2008 to January 7, 2013; April 1, 2013 to April 11, 2013

VA treatment records show the Veteran began treatment for PTSD with depression in 2008. The examiner noted the Veteran demonstrated “multiple symptoms” of PTSD and that the PTSD diagnosis was “not in doubt.” He began individual psychotherapy treatment in September 2010.

At the February 2012 VA medical examination, the Veteran reported PTSD symptoms of depressed mood, anxiety, chronic sleep impairment, and difficulty establishing and maintaining work and social relationships. The Veteran reported symptoms of depressed mood, anhedonia (inability to feel pleasure from activities usually found enjoyable), insomnia, feelings of guilt, and poor concentration. The Veteran did not endorse suicidal or homicidal ideation. The examiner noted that a number of the Veteran’s depression symptoms contributed to the Veteran’s PTSD diagnosis, noting that “[t]he two disorders are co-occurring in this Veteran, arising more or less simultaneously and in response to the same environmental stressors; each fosters and intensifies the expression of the other.” The examiner assessed the Veteran a GAF score of 57.

In January 2013, the Veteran participated in an in-patient treatment program for his PTSD at the WACO VA medical center (VAMC) for which he received a temporary 100 percent convalescence evaluation. The Veteran reported he learned new ways to cope with his symptoms and felt the program was beneficial.

The preponderance of the evidence is against an evaluation in excess of 30 percent for this appellate period. The Veteran’s PTSD and depression symptoms manifested as 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, due to such symptoms as a depressed mood, anxiety, and chronic sleep impairment. However, the Veteran’s PTSD and depression did not demonstrate as occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks, difficulty in understanding complex commands, memory loss, impairment judgement or impaired abstract thinking.

B. April 12, 2013 to December 29, 2013; March 1, 2014 and continuing thereafter

At the April 2013 VA medical examination, the Veteran reported depressed mood, fatigue, chronic sleep impairment, low appetite, poor concentration, anxiety in public spaces, occasional panic attacks, and occasional thoughts of death. The examiner noted the Veteran endorsed depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control. The examiner noted the Veteran’s PTSD and depression symptoms could no longer be differentiated because the Veteran’s impairments were attributed to both diagnoses. The Veteran was assessed a GAF score of 55.

In December 2013, the Veteran again entered an in-patient treatment program for his PTSD. He reported intrusive thoughts, nightmares, hypervigilance, irritability, avoidance, anxiety, insomnia, anhedonia, and occasional bouts of depression. The Veteran did not endorse suicidal or homicidal ideation, or demonstrate psychotic or manic signs or symptoms at admission. Upon discharge in February 2014, the Veteran reported general improvement, decreased symptoms, and that he had gained tools and insight to manage his PTSD condition. The Veteran received a temporary 100 percent convalescence evaluation during his hospitalization.

At the July 2015 VA medical examination, the Veteran reported anxiety in public spaces and anger. The examiner noted the Veteran endorsed depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work or social relationships, and difficulty in adapting to stressful circumstances, including work or work-like setting. The Veteran did not endorse suicidal or homicidal ideation. The examiner also noted that the Veteran did not demonstrate any other mental health diagnosis at this time.

The Veteran’s PTSD and depression symptoms manifested with occupational and social impairment with reduced reliability and productivity, due to symptoms such as panic attacks and difficulty in establishing and maintaining effective work and social relationships. However, the Veteran Veteran’s PTSD and depression did not demonstrate as 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, or near-continuous panic or depression affecting the ability to function independently, appropriately and effectively.

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the Veteran’s claim must be denied. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55.

ORDER

An effective date of June 27, 2008 for the grant of service connection for posttraumatic stress disorder is granted.

Entitlement to an evaluation in excess of 30 percent from June 27, 2008, to January 7, 2013; April 1, 2013 to April 11, 2013; and to an evaluation in excess of 50 percent from April 12, 2013 to December 29, 2013; and from March 1, 2014 continuing thereafter for posttraumatic stress disorder with major depressive disorder is denied.

____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.