Citation Nr: 1803306 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-22 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date earlier than February 2, 2012 for the award of a 100 percent rating for service-connected posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than February 2, 2012 for the award of Dependents' Educational Assistance (DEA) benefits. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1977 to March 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. In November 2016, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. From February 20, 2009 to January 19, 2011, the Veteran's PTSD was manifested by serious symptoms that resulted in occupational and social impairment with deficiencies in most areas including work, family relations, judgement, thinking and mood. 2. Since January 19, 2011, the Veteran's PTSD has been manifested by symptoms that more nearly approximate a total occupational and social impairment. 3. The Veteran had a permanent and total disability rating as of January 19, 2011, but no earlier. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD, are met from February 20, 2009 to January 19, 2011. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9411 (2017). 2. The criteria for a 100 percent evaluation for PTSD were met beginning January 19, 2011, but no earlier. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.130, DC 9411 (2017). 3. The criteria for the award of DEA benefits under 38 U.S.C. Chapter 35 are met effective January 19, 2011, but no earlier. 38 U.S.C. §§ 3501, 5110 (West 2012); 38 C.F.R. § 3.807 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2016, the RO certified the issues of entitlement to an earlier effective date for the award of a 100 percent rating for PTSD and the award of DEA benefits to the Board for adjudication. While these are, in fact, the issues currently before the Board, the claim for an earlier effective date for the 100 percent rating for PTSD is couched in the context of the Veteran's request for a higher initial rating for PTSD, which has been pending since February 2009. Indeed, the record reflects that, on February 20, 2009, the Veteran filed a claim seeking service connection for PTSD. In an April 2011 rating decision, the RO granted service connection for PTSD and awarded an initial 50 percent rating, effective February 20, 2009, the date of receipt of his claim, after which the Veteran filed a timely notice of disagreement (NOD) as to the initial rating assigned to his disability. After conducting additional development, the RO issued an October 2012 rating decision which awarded a 100 percent rating for PTSD, as well as entitlement to DEA benefits, effective February 2, 2012. In May 2013, the Veteran filed an NOD requesting an effective date earlier than February 2, 2012 for the grant of the 100 percent rating and the award of DEA benefits, after which those issues were perfected for appeal and certified to the Board. Nevertheless, because the Veteran initiated an appeal as to the initial rating assigned to his PTSD, the Board must consider whether the Veteran is entitled to a rating between 50 and 100 percent from February 20, 2009 (the effective date of service connection) to February 2, 2012 (the effective date of the 100 percent rating). The October 2012 rating decision reflects that the RO increased the Veteran's disability rating to 100 percent based upon a treatment record dated February 2, 2012, which showed the Veteran reported having hallucinations, was jittery all of the time, and was having difficulty finding a job because of his PTSD, as well as the opinion of the May 2012 VA examiner that the Veteran was unemployable because of his PTSD. The RO essentially found that this evidence showed the Veteran's PTSD was manifested by symptoms that more nearly approximated those which resulted in total occupational and social functioning. After review of the record, the Board finds that the preponderance of the evidence supports the award of a 100 percent rating from January 19, 2011, but no earlier. While a 100 percent rating is not warranted prior to January 19, 2011, the Board finds the preponderance of the evidence supports the award of an initial 70 percent rating from February 20, 2009. As for the initial rating for PTSD, the evidence shows the Veteran's disability has been manifested by serious symptoms throughout the appeal period. Indeed, the evidence shows the Veteran's PTSD has been consistently manifested by nightmares and intrusive memories of the in-service traumatic events that occur regularly, as well as exaggerated startle response and hypervigilance, which has caused him to be anxious, on edge at night, and on guard generally. See e.g., VA treatment records dated January 2009, January 2011, May 2011, June 2011, and November 2011. The Veteran's PTSD has also been consistently manifested by irritability with anger outbursts and a history of violence. For example, in June 2011, the Veteran reported that he got into a fight at Walmart and, as a result, moved out of his house because he was concerned about how he would respond to his wife. During the November 2016 Board hearing, he testified that he slapped his supervisor in 2009. The Veteran also reported having a physical altercation in November 2011, which resulted in police intervention and the removal of all weapons from his house. See January 2012 VA treatment record; May 2012 VA examination report. As a result of his irritability and anger outbursts, the Veteran self-isolates for fear of how he will interact with others. For example, in August 2011, the Veteran reported being more irritable with his kids and grandchildren home for the summer, which resulted in him spending days locked in his room when he felt things were "too much." In January 2012, he also reported that he stays to himself to avoid conflict with others. See also June 2011 VA treatment record. His isolation is also shown to be a result of limited interest and desire for activities. See e.g., October 2011 VA treatment record. The Board acknowledges that the majority of the treatment records describe the Veteran's thought process as linear without any impairment in his thought content, as records show the Veteran consistently denied experiencing suicidal or homicidal ideation, delusions, or hallucinations. However, the Veteran testified that he has experienced hallucinations since returning from service and he endorsed having suicidal thoughts during the October 2010 VA examination. The Veteran has never expressly endorsed having homicidal thoughts but, in January 2011, the examining clinician noted the Veteran thought there was an intruder in his house and pointed a gun at his son. In this regard, the evidence shows the Veteran's insight and judgement have been generally described as fair and limited. See e.g., VA treatment records dated January 2011, August 2011, October 2011, and January 2012. Notably, the Veteran's grooming and hygiene has also been generally described as no more than fair. Overall, and as described above, the preponderance of the lay and medical evidence dated throughout the appeal period shows the Veteran's PTSD has been manifested by serious symptoms that have resulted in an occupational and social impairment with deficiencies in most areas, including work, family relations, judgement, thinking and mood. As a result, a 70 percent rating is warranted since February 20, 2009. However, a January 2011 VA treatment record shows the Veteran was laid off from his job at a car dealership in November 2010. The Veteran reported that his old supervisor would allow him time off of work to deal with his anxiety but that the new management and changes were too stressful and resulted in him losing. He also reported that his symptoms had been worse since that time and the evidence shows he did not return to work thereafter. Given that the January 2011 treatment record shows the Veteran was no longer working and was experiencing worsened symptoms, including increased irritability and outbursts, continued hallucinations, impaired insight and judgement, and deficiencies in his ability to maintain personal hygiene, the Board finds his symptoms more nearly approximated those which resulted in total occupational and social functioning, thereby warranting a 100 percent rating from January 19, 2011. This level of occupational and social impairment with increased symptomatology and an inability to work as a result of his symptoms are not shown prior to January 19, 2011. Therefore, a 100 percent rating is not warranted prior to that date. Accordingly, for the reasons explained above, the Board finds the preponderance of the evidence supports the award of an initial 70 percent rating, but no higher, from February 20, 2009. The preponderance of the evidence also supports the award of a 100 percent rating from January 19, 2011, but no earlier. In making these determinations, the Board has resolved all doubt in favor of the Veteran. The Veteran is also seeking an effective date earlier than February 2, 2012 for the grant of DEA benefits. DEA benefits may be paid to dependents of a veteran whose has a service-connected disability that is rated permanent and total. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. §§ 3.807 (a), 21.3021. A total disability may be assigned where a Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. In this case, the Board has determined that the Veteran's PTSD warrants a 100 percent rating, effective no earlier than January 19, 2011. As a result, the Veteran is also entitled to DEA benefits effective from January 19, 2011, but no earlier, as that is the date of his 100 percent disability rating. 38 U.S.C. §§ 3501, 3510. ORDER An initial 70 percent rating, but no higher, for service-connected PTSD is granted from February 20, 2009. A 100 percent rating for service-connected PTSD is granted from January 19, 2011, but no earlier. Entitlement to DEA benefits is granted from January 19, 2011, but no earlier. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs