PTSD DUE TO TRAUMA SPECIFIED AS COMBAT OR NONCOMBAT PERSONAL ASSAULT

S. F. KEANE · 2025 · Case ID: A25000667

MIXED

Summary

The Veteran, an Air Force Veteran who served from May 1994 to August 1997, appealed for an increased rating for service-connected Post-Traumatic Stress Disorder (PTSD) with associated symptoms including major depressive disorder, anxiety, headaches, nervousness, fatigue, and insomnia. The Veteran sought an increased rating to 100 percent, contending her current symptoms warranted a higher evaluation than the existing 70 percent rating. The Board reviewed a September 2021 VA PTSD examination, where the examiner opined that the Veteran's PTSD symptoms had worsened and more closely approximated total occupational and social impairment. The examination documented the Veteran's reported symptoms, including dissociative reactions, avoidance, negative beliefs, impaired judgment, difficulty adapting to stress, suicidal ideation, and intermittent inability to perform daily living activities. The Board found the Veteran's PTSD symptoms met the criteria for a 100 percent rating, citing gross impairment in thought processes, persistent delusions or hallucinations, persistent danger of hurting self or others, intermittent inability to perform daily living activities, and disorientation to time or place. The Board also denied the Veteran's request for an earlier effective date for the 100 percent rating, as no claim or intent to file for an increased rating was received prior to December 23, 2020, the date of the intent to file. Therefore, the Board granted the increased rating to 100 percent effective December 23, 2020, and denied the earlier effective date.

Rationale

Holistic analysis of all symptoms considered; Symptoms approximated total occupational and social impairment; Met criteria for 100% rating under DC 9411

Service Branch

AIR FORCE

Special Benefit

EARLIER EFFECTIVE DATE

Diagnostic Code

9411

Docket No.

230518-348014

Full Decision Text

Citation Nr: A25000667
Decision Date: 01/03/25 Archive Date: 01/03/25

DOCKET NO. 230518-348014
DATE: January 3, 2025

ORDER

An increased rating of 100 percent for service-connected post-traumatic stress disorder (PTSD) with major depressive disorder, with anxiety, headaches, nervousness, fatigue, and insomnia, effective December 23, 2020, is granted.

An earlier effective date, prior to December 23, 2020, for the assignment of a 100 percent rating for service-connected PTSD with major depressive disorder, with anxiety, headaches, nervousness, fatigue, and insomnia, is denied.

FINDINGS OF FACT

1. During the rating period on appeal, the Veteran's PTSD symptoms more closely approximates total occupational and social impairment.

2. On December 23, 2020, VA received the Veteran's intent to file a claim and on August 20, 2021, the Veteran timely filed an increased rating claim for her service-connected PTSD. Prior to December 23, 2020, there were no pending or unadjudicated claim(s) for an increased rating for the Veteran's service-connected PTSD.

CONCLUSIONS OF LAW

1. The criteria for an increased rating of 100 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9411.

2. The criteria for earlier effective date, prior to December 23, 2020, for the assignment of a 100 percent rating for service-connected PTSD, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Air Force on active duty from May 1994 to August 1997.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an May 2022 Rating Decision of a Department of Veterans Affairs (VA), an agency of original jurisdiction (AOJ).

In the May 2023, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Increased Ratings

Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

When the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire
.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

When the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no requirement that both medical and competent lay evidence is required to establish a claim; rather, competent lay evidence can be sufficient on its own to establish any element of a claim. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011).

It is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter (which includes but is not limited to equipoise), VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Lynch v. McDonough, 21 F.4th 776, 778 (Fed. Cir. 2021).

1. An increased rating of 100 percent for service- PTSD with major depressive disorder, with anxiety, headaches, nervousness, fatigue, and insomnia, effective December 23, 2020, is granted.

The Veteran contends her service-connected PTSD should be rated greater than 70 percent. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411.

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).

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

A 10 percent rating is assigned 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
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).

A 30 percent rating is assigned 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 assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned when there is 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 worklike setting); inability to establish and maintain effective relationships.

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.

In this case, in August 2021, the Veteran filed an increased rating claim for her service-connected PTSD, among other claims. See August 2021 VA 21-526EZ Application for Disability Compensation and Related Compensation Benefits. In response to this increased rating claim, in September 2021, VA completed a review PTSD examination of the Veteran. See September 2021 Review Post Traumatic Stress Disorder VA Examination. The examiner opined the Veteran's PTSD with major depressive disorder, anxiety, headaches, nervousness, fatigue, and insomnia had worsened. Id. The examiner further opined the Veteran's occupational and social impairment due to her PTSD symptoms more closely approximates an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Id.

The examiner documented the Veteran's education, occupation, and family history. Id. During this examination, the Veteran reported having family problems, limited contact outside her home, and explained her typical day is spent watching TV or sleeping. Id. The Veteran further reported: her ability to sleep has gotten worse over time; her appetite fluctuates; she has passive thoughts of wanting an escape and wishes she could vanish; never plans to hurt self nor attempts to hurt self since 2002; and her kids keep her going. Id. However, the Veteran also reported, "there is a weird thing that happens to her and it randomly happens and feels that things are not real and [she] feels unattached from self and watching self." Id. The Veteran reported she does not know what triggers that and at times she feels as though she is losing time. Id.

As to the Veteran's PTSD symptoms per diagnostic criteria, the examiner opined the Veteran has having: recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); recurrent distressing dreams in which the content and/or affect of the dream are related to the traumatic event(s); dissociative reactions (e.g., flashbacks) in which the individual feels or acts as if the traumatic event(s) were recurring; intense or prolonged psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); marked physiological reactions to internal or external cues that symbolize or resemble an aspect of the traumatic event(s); avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); avoidance of or efforts to avoid external reminders (people, places, conversations, activities, objects, situations) that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); persistent and exaggerated negative beliefs or expectations about oneself, others, or the world (e.g., "I am bad,: "No one can be trusted,: "The world is completely dangerous,: "My whole nervous system is permanently ruined"); persistent, distorted cognitions about the cause or consequences of the traumatic event(s) that lead to the individual to blame himself/herself or others; persistent negative emotional state (e.g., fear, horror, anger, guilt, or shame); markedly diminished interest or participation in significant activities; feelings of detachment or estrangement from others; persistent inability to experience positive emotions (e.g., inability to experience happiness, satisfaction, or loving feelings.); irritable behavior and angry outbursts (with little or no provocation) typically expressed as verbal or physical aggression toward people or objects; hypervigilance; exaggerated startle response; problems with concentration; sleep disturbance; duration of disturbance is more than 1 month; and the Veteran's PTSD symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Id.

The examiner further identified the following: depressed mood; anxiety; suspiciousness; panic attacks that occur more than once a week; chronic sleep impairment; mild memory loss; impairment of short and long term memory, for example, retention of only highly learned material, while forgetting to complete tasks; impaired judgment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; difficulty adapting to stressful circumstances, including work or a work like setting; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, all as additional symptoms the Veteran's PTSD presents. Id.

Considering all the evidence, the Board finds the Veteran's PTSD symptoms more closely approximates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place.

Accordingly, as the evidence of record persuasively weighs in favor of an increased rating of 100 percent, effective December 23, 2020, for the Veteran's service-connected PTSD, the benefit-of-the-doubt rule does not apply, and the claim is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

2. An earlier effective date for the assignment of a 100 percent rating for PTSD with major depressive disorder, with anxiety, headaches, nervousness, fatigue, and insomnia, is denied.

Except as otherwise provided, the effective date of an evaluation or rating and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

A claimant may indicate their desire to file a claim for benefits by submitting an intent to file a claim to VA. Upon receipt of an intent to file a claim, VA shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the appropriate application form prescribed by the Secretary. 38 C.F.R. § 3.155(b)(3). If an intent to file a claim is not submitted in the form required by
rating and award of compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

A claimant may indicate their desire to file a claim for benefits by submitting an intent to file a claim to VA. Upon receipt of an intent to file a claim, VA shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the appropriate application form prescribed by the Secretary. 38 C.F.R. § 3.155(b)(3). If an intent to file a claim is not submitted in the form required by 38 C.F.R. § 3.155(b)(1), as described above, or a complete claim is not filed within one year of the receipt of the intent to file a claim, VA will not take further action unless a new claim or a new intent to file a claim is received. 38 C.F.R. § 3.155(b)(4).

In this case, the Veteran filed an increased rating claim for her service-connected PTSD on August 20, 2021, which was preceded by an intent to file that VA received on December 23, 2020. In response to the Veteran's August 2021 increased rating claim for her service-connected PTSD, in September 2021 VA completed a review PTSD examination of the Veteran which resulted with an increased rating for her service-connected PTSD, effective December 23, 2020, the date of her intent to file.

The applicable law and regulations provide that it is the later of the date of receipt of the claim or the date entitlement arose which is controlling. As the date of the Veteran's claim is the later of the two dates, which in this case, the claim was preceded by the Veteran's intent to file on December 23, 2020. However, an effective date prior to December 23, 2020, is not warranted in this case. As noted above, there were no pending, unadjudicated claim(s), for her service-connected PTSD, prior to December 23, 2020.

Accordingly, the Veteran's claim for earlier effective date, prior to December 23, 2020, for the assignment of a 100 percent rating for service-connected, is denied. 38 C.F.R. §§ 3.400.

S. F. Keane

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C.C.M., Associate Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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