Citation Nr: 23046594 Decision Date: 08/22/23 Archive Date: 08/22/23 DOCKET NO. 20-01 808 DATE: August 22, 2023 ORDER Entitlement to an effective date prior to June 3, 2016, for the grant of a 70 percent rating for a service-connected psychiatric disorder is denied. Entitlement to a rating in excess of 70 percent for a service-connected psychiatric disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's intent to file was received on June 3, 2016; within one year he submitted a claim for increased rating for his service-connected psychiatric disorder which resulted in the rating decision on appeal; no intent to file, formal or informal claim of increased rating was received prior to June 3, 2016, and the Board cannot factually ascertain that his psychiatric disorder worsened in the one year period prior to receipt of his intent to file. 2. The Veteran's service-connected psychiatric disorder has not more nearly approximated total occupational and social impairment during the appeal period. 3. The evidence is persuasively against finding that the Veteran's service-connected disabilities prevented him from finding and maintaining gainful employment during the appeal period. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 3, 2016, for the grant of a 70 percent rating for a service-connected psychiatric disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.157. 2. The criteria for entitlement to a rating in excess of 70 percent for a service-connected psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9440. 3. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1996 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2018 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). 1. Entitlement to an earlier effective date for the grant of a 70 percent rating for a service-connected psychiatric disorder The Veteran has been service-connected for insomnia, rated as 10 percent disabling, since his separation from service. An October 2006 AOJ rating decision denied a rating in excess of 10 percent for insomnia. By letter dated October 25, 2006, the Veteran was notified of this decision and his appellate rights. The Veteran did not submit a notice of disagreement, or new and material evidence, within one year of the notice of decision. This decision, therefore, is final. 38 C.F.R. §§ 3.156(b); 20.200-204. In pertinent part, by letter dated April 7, 2015, the AOJ acknowledged receipt of an intent to file claim on April 3, 2015. The AOJ provided the Veteran instructions regarding how to file an application for benefits. The Veteran did not file a formal application for benefits within one year of this notice. As such, this intent to file cannot form the basis for an earlier effective date of award. 38 C.F.R. § 3.155(b). A review of the claims file indicates that VA next received an intent to file a claim for compensation on June 3, 2016. The Veteran then submitted a VA 21-526EZ Fully Developed Claim in May 2017, which included a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). Although this service connection claim denied by in a February 2018 rating decision, based on the results of a September 2018 VA psychiatric examination, the AOJ granted an increased rating of 70 percent for the Veteran's already service-connected psychiatric disorder from June 3, 2016, reclassifying his insomnia as an "other trauma and stressor related disorder." In his May 2019 notice of disagreement, the Veteran's former representative, in addition to requesting a copy of the claims file, asserted entitlement to the "highest possible evaluation, in excess of 70 percent, from the earliest possible effective date, prior to June 3, 2016, to include TDIU." The effective date of an award for an increased rating shall be the date of receipt of the formal or informal claim, or the earliest date as of which it is factually ascertainable that an increase in disability had occurred, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1). Stated conversely, the effective date of an increased rating is the date of ascertainable increase or date of receipt of formal or informal claim, whichever is later under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(o)(1). If, however, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). For claims, such as this one, filed on or after March 24, 2015, VA has required that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The pertinent regulation allows a claimant to submit a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC ("Intent to File" form), and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b) ("Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form... [for the] benefit sought within 1 year of receipt of the intent VA will consider the complete claim filed as of the date the intent to file a claim was received."). Thus, in assigning an effective date for an award of increased compensation, VA must make two essential determinations. It must determine (1) when a claim for increased compensation was received, and (2) when a factually ascertainable increase in disability occurred. At the outset, the Board notes that prior to VA receipt of the Veteran's June 2016 intent to file, the is no record of communication from the Veteran since the adjudication of his initial post-service claims in an October 2005 rating decision and the addition of VA medical records to the claims file in March 2008. As such, no intent to file, formal or informal claim of increased rating was received prior to his June 2016 intent to file. However, the AOJ reasonably construed the Veteran's May 2017 claim of service connection as a claim of increase for his service-connected psychiatric disorder. The Veteran first sought personal VA mental health treatment in February 2015. According to an initial evaluation note, he reported difficulty managing feelings of anger, anxiety, and depression since leaving military service. He displayed an external locus of control with regard to his symptoms and reported feeling unappreciated in his relationships as well as difficulty enjoying daily life. He was fully oriented, appropriate in appearance, with a depressed and angry mood, normal thought and speech processes, fair insight and good judgment. He also denied homicidal or suicidal ideation and was diagnosed with unspecified depressive disorder as well as other trauma and stressor related disorder. Based on this evidence, the Board finds that it is not factually ascertainable that the Veteran's psychiatric condition worsened in the one-year period prior to the receipt of this intent to file. Although he first sought VA mental health treatment in February 2015, during his initial evaluation he described difficulty dealing with his psychiatric symptoms since his 2005 separation from service. Notably, he did not report a recent worsening of any particular symptoms or overall symptomatology. As such, entitlement to an effective date prior to receipt of his June 2016 intent to file is not warranted. The Board has considered whether 38 C.F.R. § 3.157(b) which had been in effect prior to March 24, 2015. See 79 Fed. Reg. 57660, 57696 (Sept. 2014). This provision stated that once a formal claim for pension or compensation had been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability was not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in 38 C.F.R. § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). However, the Veteran had a compensable rating for his insomnia and the provisions of 38 C.F.R. § 3.157 do not apply. 2. Entitlement to a rating in excess of 70 percent for a service-connected psychiatric disorder The rating decision on appeal granted the Veteran entitlement to a 70 percent rating for his service-connected psychiatric disorder, and in his May 2019 notice of disagreement he asserted entitlement to "the highest possible rating, in excess of 70 percent." Disability ratings are determined by applying the criteria set forth in the 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). The Veteran's psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9440. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Board must interpret various examination reports in light of the entire medical history, reconciling any contrary findings into a consistent picture. 38 C.F.R. § 4.2. In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443. A psychiatric disability evaluated at 70 percent disabling requires the following manifestations: 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 that 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); and/or the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is assigned for mental conditions manifesting with 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Veteran has participated in regular VA psychiatric counseling throughout the appeal period. During a May 2016 psychiatric evaluation, he presented as fully oriented and cognitively lucid, appropriate in attire, with attention and concentration within normal limits. His speech was normal, his mood "ok," and his affect was congruent with mood. His thought content and processes were linear, his memory and impulse control was intact, and his insight and judgment were average. The Veteran indicated he was looking forward to working overseas in order to get distance from his relationship difficulties with his girlfriend. After returning from overseas, the Veteran underwent a September 2018 initial mental health evaluation, reporting a history of depression, a lack of concentration, and irritability with others, though he denied harmful ideations. He was fully oriented, normal in appearance, with normal speech and thoughts, tangential thought processes, appropriate mood, flat affect, fair insight and limited judgment. He reported he was now living with his ex-wife and daughter. The Veteran was also afforded a September 2018 VA psychiatric examination, wherein the examiner determined that he did not meet the criteria for PTSD but diagnosed him with "other trauma and stressor related disorder." He reported living with his ex-girlfriend and daughter and spending his days looking for jobs, performing house repairs and helping his daughter with school. He denied any legal or substance abuse issues, and was cooperative, fully oriented and casually attired. The examiner determined that he manifested 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 due to symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation or mood, difficulty in adapting to stressful circumstances and establishing and maintaining effective work and social relationships, as well as an inability to establish and maintain effective relationships. April 2019 private treatment records indicate the Veteran was fully oriented, well groomed, well-nourished and in no acute distress. He was alert and oriented to person, time, place and situation. A November 2020 VA psychological assessment stated that he exhibited fair community integration and attributed his cognitive complaints to both poor sleep and his mental health disorder. During a January 2021 psychological assessment, he complained of poor sleep, poor concentration, an up and down mood disorder, and loneliness, though he denied homicidal or suicidal ideation. He reported seeing his three children when possible and talking to them approximately once a week, as well as talking to his brother on the phone every day. Upon examination he was alert and fully oriented, appropriate in appearance, with normal speech, thoughts, motor activity, and intellect as well as fair insight and judgment. Throughout February 2021 to December 2021 VA psychotherapy sessions, the Veteran was consistently calm and conversive, fully oriented and alert, with appropriate appearance, normal mood and appropriate affect, non-tangential thoughts and at least fair insight and judgement. He consistently denied suicidal or homicidal ideations and also participated in group therapy sessions. During this period his primary symptom complaint was insomnia, which had improved to what a treating clinician classified as a "mild level" by May 2021. After review of the evidence of record, the Board finds that the Veteran's service-connected psychiatric disorder has not more closely approximated total occupational and social impairment. The Oxford English Dictionary defines the term "total" as "complete or absolute." Throughout the appeal period he has had regular contact and relationships with his family members, to include his three daughters and brother. As is discussed in more detail below, he has also been gainfully employed for much of the appeal period. While there is no doubt that the Veteran's psychiatric symptoms, to include his irritability, insomnia and difficulty with authority, have impacted his work and social relationships, there is no indication that they have resulted in complete occupational or social impairment. The Board notes that throughout the appeal period the Veteran has been entrusted to manage his own financial affairs, successfully found a new job and moved to another city, and regularly attended therapy. There is also no indication that he has been unable to perform the activities of daily living and has consistently presented to VA clinical appointments as appropriate in appearance and fully oriented. Although he has complained of some cognitive impairment that is attributed to his insomnia and psychiatric disorder, the Veteran's self-sufficiency indicates that this symptom does not come close to approximating the gross impairment of thought processes contemplated by the 100 percent rating criteria. Similarly, his repeated denial of suicidal or homicidal ideations indicates that he is not a consistent danger to himself or others. As such, entitlement to a rating in excess of 70 percent for his service-connected psychiatric disorder is not warranted. 3. Entitlement to a TDIU In his May 2019 notice of disagreement, the Veteran also asserted entitlement to a TDIU. For VA purposes, total disability exists when there is any impairment of the mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §3.340. A TDIU may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Here, the Veteran has met the percentage threshold for consideration of a TDIU from June 3, 2016, which is the period on appeal. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The 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 v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). At the outset, the Board notes that after claiming entitlement to a TDIU, the AOJ mailed the Veteran a VA 21-8940 TDIU application, which has not been returned. June 2016 VA treatment records indicate the Veteran reported he would be "working overseas for a while." September 2018 treatment records note he reported frequent conflicts at work as a result of his psychological issues. A contemporaneous VA examination indicated that he was looking for work in the IT field after recently completing an overseas contract. During a November 2020 VA psychological examination, he reported relocating from Atlanta to San Antonio in March 2020 for a new information technology job. During a January 2021 treatment session, he stated he worked full time at Lackland Air Force base in electronics maintenance. There is no indication he is not still in that position. Based on the above, the Board finds that entitlement to a TDIU is not warranted. For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his or her case outside the norm. The fact that the Veteran was either gainfully employed or actively looking for work throughout the appeal period indicates that he was not unemployable as a result of his service-connected disabilities. The Board recognizes that the Veteran's disabilities have caused him occasional difficulties at work but notes that his combined disability rating has been 80 or 90 percent during the appeal period. The Board further notes that a high rating itself is recognition that the impairment being compensated makes it difficult to obtain and keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board emphasizes that the Veteran maintains the ultimate burden to establish entitlement to a TDIU. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009). In this case, the Veteran did not fill out a TDIU application, and the Board cannot determine with any reasonable degree of accuracy any specific time periods where the TDIU criteria may have been met. There is insufficient evidence suggesting that the Veteran is working in a sheltered or protected work environment. Based on this and the evidence of record indicating the Veteran was employed full time throughout much of the appeal period, the claim of entitlement to a TDIU is denied. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Schumacher, Kyle C. 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.