Citation Nr: A23007451
Decision Date: 04/18/23 Archive Date: 04/18/23

DOCKET NO. 230314-330475
DATE: April 18, 2023

ORDER

Entitlement to an effective date prior to April 4, 2022 for the grant of an increased disability rating to 70 percent disability rating for the Veteran's service connected posttraumatic stress disorder (PTSD) with panic attacks is denied.

Entitlement to an effective date prior to April 4, 2022, for the grant of TDIU is denied.

FINDINGS OF FACT

1. Prior to April 4, 2022, there is no communication that demonstrates a factually ascertainable increase in the severity of the Veteran's PTSD with panic attacks to the level of a 70 percent disability rating.

2. Prior to April 4, 2022, the Veteran's service-connected PTSD with panic attacks did not preclude him from securing or following a substantially gainful occupation.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a disability rating in excess of 50 percent prior to April 4, 2022 for PTSD with panic attacks 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.

2. The criteria for entitlement to a TDIU prior to April 4, 2022 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from November 1966 until his honorable discharge in November 1969. During the Veteran's service, he was awarded the National Defense Service Medal, Vietnam Service Medal with 2 Bronze Stars, Vietnam Campaign Medal with 1960 Device, Combat Infantryman Badge, Purple Heart, Army Commendation Medal, Parachutist Badge, Expert (Marksmanship) of the M-14, M-16, and M-60 firearms, and 2 overseas Bars.

This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c).

These matters come before the Board of Veterans' Appeals (Board) on appeal from the October 2021, January 2022, August 2022, and January 2023 rating decision(s) by the Regional Office of the United States Department of Veterans Affairs (VA).

The original rating decision on appeal was issued in October 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In April 2022, the Veteran submitted a VA Form 20-0995 (Decision Review Request: Supplemental Claim), and requested readjudication of the issues of entitlement to a disability rating in excess of 50 percent for PTSD with panic attacks and entitlement to TDIU most recently addressed in an October 2021 rating decision. In August 2022, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which granted the Veteran's claims, increasing the Veteran's service-connected PTSD with panic attacks to a 70 percent disability rating and granted entitlement to TDIU, with an effective date of April 12, 2022.

In November 2022, the Veteran submitted a VA Form 20-0996 (Decision Review Request: Higher-Level Review (HLR)), and requested review of an August 2022 rating decision. In January 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior August 2022 rating decision and granted the Veteran's claim to an effective date prior to April 12, 2022. Specifically, the agency of original jurisdiction (AOJ) granted an effective date for the issues on appeal of April 4, 2022.

In the January 2023 VA Form 10182 (Decision Review Request: Board Appeal), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2022 rating decision on appeal. 38?C.F.R. § 20.301.

Effective Date

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400.

Under 38 U.S.C. § 5110(a), the effective date of an increase in a Veteran's disability compensation 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(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Thus, "the plain language of [section] 5110(b)(2)…only permits an earlier effective date for an increased disability compensation if that disability increased during the one-year period before the filing of the claim."

Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case:

(1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1));

(2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997).

1. Entitlement to an effective date prior to April 4, 2022 for the grant of an increased disability rating to 70 percent disability rating for the Veteran's service connected PTSD with panic attacks is denied.

The Veteran asserts that he is entitled to an effective date prior to April 4, 2022 for the grant of an increased disability rating to 70 percent for his service connected PTSD with panic attacks because his PTSD symptoms became so severe that he had to leave his employment with Home Depot on October 15, 2020; and has not worked since that time.

As a preliminary matter, the Board notes that the Veteran's prior employer reported that the Veteran (1) lost no time in the preceding 12-months due to disability; (2) worked 8-hour shifts for a total of 40-hours per week; (3) the Veteran voluntarily resigned his position on October 15, 2020, asserting the decision was based upon (a) extreme pain in his bilateral knees and ankles; and (b) he reported experiencing a high level of anxiety and depression. See September 2021 VA Form 21-4192 (Request for Employment Information in Connection with Claims for Disability Benefits).

The question for the Board is whether VA received an informal or formal claim for compensation for this disability prior to April 4, 2022; or if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); or if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

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).

The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher prior to April 4, 2022 and if so, when the Veteran's impairment rose to the level of disability rating required for a 70 percent disability rating.

The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher prior to April 4, 2022. The Veteran's symptoms more closely approximated the symptoms associated with no higher than a 50 percent disability rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with no more than a 50 percent disability rating.

A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning.

A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment.

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.

The Board Notes that the Veteran's VA treatment records both around the Veteran's October 2020 voluntary resignation do not indicate an increase in the severity of his PTSD with panic attacks. The Veteran's July 2020 VA treatment records reflect that the Veteran reported that he was doing ok but had a couple of bumps because his daughter almost died due to a fentanyl overdose and living with her boyfriend in a hotel. Shortly following the Veteran's voluntary resignation from his employer, the Veteran's VA treatment records reflect that the Veteran reported that he retired. The Veteran's VA treatment records reflect a consistent diagnostic impression throughout the period prior to April 4, 2022.

The January 2020 VA examination, including the Veteran's lay statements, show that the Veteran's PTSD with panic attacks was manifested by symptoms associated with a 30 percent disability rating (depressed mood, anxiety, panic attacks (weekly or less often), and chronic sleep impairment); symptoms associated with a 50 percent disability rating (disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships); symptoms associated with a single 70 percent disability rating (difficulty in adapting to stressful circumstances (including work or a worklike setting)). The Veteran reported that he felt stresses, but had been working full-time for his employer since 2013.

The Board notes that the Veteran reported increased stress and anxiousness during his May 2021 VA appointment and stresses as he was preparing for knee replacement surgeries in both January 2022 and March 2022. However, the Veteran's overall diagnostic impression remained unchanged throughout the period on appeal.

The September 2021 VA examination, including the Veteran's lay statements show that the Veteran's PTSD with panic attacks was manifested by symptoms associated with a 30 percent disability rating (depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, or recent events)); symptoms associated with a 50 percent disability rating (impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships); symptoms associated with a single 70 percent disability rating (difficulty in adapting to stressful circumstances (including work or a worklike setting)). The Board notes that during the September 2021 VA examination, the Veteran reported that he resigned from his employer because he was having too many confrontations with supervisors, coworkers, and customers.

During the September 2021 VA examination, the Veteran noted that he was in a physical altercation with a coworker, that his anger was increasing, and he has not worked since that time. However, these new assertions are inconsistent with the record. Previously, the Veteran reported that he retired and the Veteran's prior employer noted that the Veteran voluntarily resigned due to bilateral ankle disabilities, bilateral knee disabilities, and assertions of increased anxiety and depression.

The Veteran's inconsistent statements included within the Veteran's VA treatment records, VA examination(s), and report(s) to his employer compel the Board to find that the Veteran's more recent statement as to incident(s) during his employment to not be credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Therefore, the Board cannot assign them probative weight. Id.

The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with no more than a 50 percent disability rating prior to April 4, 2022. The Veteran experienced occupational and social impairment with reduced reliability and productivity. Mental status examinations in VA treatment records and the January 2020 and September 2021 VA examinations indicate that the Veteran had occupational and social impairment with reduced reliability and productivity.

While prior to April 4, 2022, the Veteran did experience a single symptom contemplated by a 70 percent rating (difficulty in adapting to stressful circumstances (including work or a worklike setting)) the evidence overall does not demonstrate the level of impairment associated with a 70 percent disability rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a no more than a 50 percent disability rating. Further, while intermittent VA treatment records show the Veteran reported perceived increases in his stress, prior and subsequent treatment records contain reports that the Veteran was generally performing well at work.

The Board concludes that prior to April 4, 2022, the Veteran's service-connected PTSD with panic attacks did not produce the level of impairment associated with a 70 percent disability rating. Therefore, the Veteran's increase in severity of his service-connected PTSD with panic attacks occurred no earlier than April 4, 2022, during the period on appeal. Therefore, because an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)).

In this case, VA received an original claim of entitlement to an increased disability rating for his service-connected PTSD with panic attacks on December 9, 2019, VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) (December 9, 2019). The Regional Office subsequently denied that claim in the January 2020 rating decision. VA received a VA Form 20-0996 (Higher Level Review) in December 2021. The Regional Office subsequently denied that claim in the January 2022 rating decision. VA received VA form 20-0995 (Decision Review Request: Supplemental Claim) in April 2022. The Regional Office with an effective date of the evidence that showed an increase in the severity of his disability, April 4, 2022.

Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than April 4, 2022, for the grant of an increased disability rating for his service-connected PTSD with panic attacks. There is no communication prior to April 4, 2022, that demonstrates a factually ascertainable increase in the severity of the Veteran's PTSD with panic attacks to the level of a 70 percent disability rating. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a Veteran suffers from a disability does not establish intent on the part of the Veteran to seek connection for that disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The law dictates that the effective date of the increased disability rating is the date of the receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, the effective date for the grant of an increased disability rating is appropriately no earlier than April 4, 2022, for the Veteran's PTSD with panic attacks, and no earlier.

In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the evidence persuasively weighs against the Veteran's claim, the doctrine is not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Entitlement to a TDIU

The Veteran asserts that he is entitled to an effective date prior to April 4, 2022 for entitlement to TDIU. Specifically, the Veteran asserts that he is entitled to TDIU effective October 16, 2020 because that is the date following the termination of his employment.

The Board notes that VA received VA form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) on August 30, 2021, which is within 1-year of the termination of his employment and during the period on appeal.

VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a).

Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

The Court recently defined "substantially gainful employment," holding that there is both an economic and a noneconomic component; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019).

The Court set forth a number of factors to consider in making the latter determination, including the following: the veteran's history, education, skill, and training; his or her physical abilities, including any audio or visual limitations, as well as limitations in lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching; and his or her mental ability, including limitations in memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id.

Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457.

For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363.

The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a).

Service connection is in effect for the following disability: PTSD with panic attacks (rated at a 50 percent disabling throughout the period on appeal). For the time period on appeal, the Veteran's combined disability evaluation is 50 percent. Thus, the percentage requirements for a TDIU are not met because the Veteran has a single service-connected disability rated at less than 60 percent disabling. 38 C.F.R. § 4.16(a).

During the period on appeal, the Veteran has stated that he is unable to obtain or maintain substantially gainful employment. The Veteran's VA treatment records reflect that the Veteran reported that he retired. Furthermore, the Veteran's employer noted that the Veteran's voluntary resignation was due to both service-connected and nonservice-connected disabilities. Furthermore, as noted above, the Veteran's statements regarding the severity of his service-connected disability have not been deemed credible.

The Veteran also suffers from several non-service connected conditions, including the following: osteoarthritis of the right knee, osteoarthritis of the left knee, lipoma of the skin and subcutaneous tissue of the face, hypertension, hyperlipidemia, and umbilical hernia.

Between October 2020 and April 4, 2022, the Veteran has undergone a single VA examination. The September 2021 VA examiner determined that the Veteran's service-connected PTSD with panic attacks produces occupational and social impairment with reduced reliability. The evidence of record does not demonstrate that the Veteran's service-connected disabilities alone resulted in unemployability. The record indicates that the Veteran retired and advised his employer that he was voluntarily resigning due to bilateral knee, bilateral ankle, and his acquired psychiatric disabilities. However, the Veteran did not have any missed time within the prior 12-months due to his disabilities.

In short, the evidence of record overwhelmingly shows that the Veteran's inability to obtain and maintain employment is not due to the Veteran's service-connected PTSD with panic attacks prior to April 4, 2022. Indeed, the most recent VA evaluation of the Veteran's service-connected PTSD reflects that the Veteran has occupational and social impairment with reduced reliability. As such, there is simply no evidence of unusual or exceptional circumstances to warrant referral for extraschedular consideration of a total disability rating based on the Veteran's service-connected disability. Given the above, the weight of the evidence does not support the Veteran's assertion that his service-connected disabilities are of such severity as to preclude his participation in any form of substantially gainful employment. Accordingly, the Board concludes that referral of this claim for consideration of TDIU on an extraschedular basis is not warranted.

The evidence in this case is not so evenly balanced so as to allow for application of the benefit of the doubt rule as required by law and VA regulations. See 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Therefore, the Veteran's claim for entitlement to a TDIU is denied.

In this case, VA received an original claim of entitlement to a TDIU on August 30, 2021, VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) (August 30, 2021). The Regional Office subsequently granted that claim with an effective date upon the evidence demonstrating an increase in the severity of the Veteran's claim, April 4, 2022.

Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than April 4, 2022, for the grant of a TDIU.

There is no communication prior to April 4, 2022, that demonstrates a factually ascertainable increase in the severity of the Veteran's PTSD with panic attacks to the level of a 70 percent disability rating, nor unemployability due to the Veteran's PTSD alone. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a Veteran suffers from a disability does not establish intent on the part of the Veteran to seek connection for that disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Although the Board accepts that the Veteran was unemployed prior to the date of receipt of his application for TDIU, the law dictates that the effective date is the date of the receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, the effective date for the grant of TDIU is appropriately no earlier than April 4, 2022, for the Veteran's TDIU.

(Continued on the next page)

T. Berry

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board G. Deemer, 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.