Citation Nr: 1804714 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-28 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disabling rating in excess of 50 percent prior to August 31, 2011, and in excess of 70 percent after August 31, 2011 for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than August 31, 2011 for grant of a total disability rating based on individual unemployability (TDIU). 3. Entitlement to an effective date earlier than August 31, 2011, for an award of Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35. REPRESENTATION Appellant represented by: J. Nathaniel Guin, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his Wife ATTORNEY FOR THE BOARD C. Ford, Associate Counsel INTRODUCTION The Veteran served active duty in the United States Army from October 1969 to September 1971. This appeal arises before the Board of Veterans' Appeals (Board) from August 2008 and September 2013 rating decisions in which the Department of Veteran Affairs (VA) Montgomery, Alabama, Regional Office (RO) continued a 50 percent disabling rating for PTSD, granted a TDIU, effective August 31, 2011, and granted DEA benefits, effective August 31, 2011, respectively. The Board notes that, during the pendency of the appeal, the disabling evaluation for PTSD was increased to a 70 percent rating, effective August 31, 2011. The Board notes that the Veteran filed a formal claim for a TDIU in November 2009. In Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran is seeking entitlement to a TDIU as a component of his claim for a higher rating for his service-connected PTSD. In September 2017, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. FINDINGS OF FACT 1. Prior to August 31, 2011, the Veteran's PTSD was manifested by symptoms such as occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking and mood, due to such symptoms as suicidal ideation, impaired impulse control, and an inability to establish and maintain effective relationships. 2. After August 31, 2011, the Veteran's PTSD was manifested by symptoms such as occupational and social impairment, with deficiencies in most areas, such as work, judgment, thinking and mood, due to such symptoms as suicidal ideation, impaired impulse control, and an inability to establish and maintain effective relationships. 3. Since November 30, 2009, the evidence of record is at least in equipoise that the Veteran's service-connected PTSD prevents him from obtaining or maintaining substantial gainful employment. 4. Since November 30, 2009, the evidence of record is at least in equipoise that the Veteran had a total disability that was permanent in nature. CONCLUSIONS OF LAW 1. Prior to August 31, 2011, the criteria for a rating of 70 percent disabling, but not higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. After August 31, 2011, the criteria for a rating in excess of 70 percent disabling for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 3. The criteria for a TDIU from November 30, 2009, but no earlier, due to service-connected PTSD have been met. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. 3.340, 3.341, 4.15, 4.16 (2017). 4. The criteria for an effective date of November 30, 2009, but no earlier, for DEA are met. 38 U.S.C. §§ 3500, 3501, 5110 (2012); 38 C.F.R. § 3.400, 3.807 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, otherwise the lower rating will apply, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods based on the facts found - a practice known as "staged" ratings. In general, all disabilities, including those arising from a single disease entity, are rated separately, and disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2017). Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the Veteran's service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran was rated at 50 percent disabling for PTSD prior to August 31, 2011 and 70 percent disabling afterward under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, which is governed by a General Rating Formula for Mental Disorders (General Rating Formula), a 50 percent rating is warranted 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; and/or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted 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; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact a veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Veteran asserts that his symptoms of PTSD are such that they warrant a 70 percent disabling rating prior to August 31, 2011, and in excess of 70 percent disabling from August 31, 2011 and after. Turning to the evidence of record, the Veteran's December 2007 VA medical records indicate that the Veteran reported for mental health treatment several times. The Veteran initially reported during this time to request to be placed back on medication. The Veteran reported abuse of several illicit substances, stating that he cannot sleep without substances. He further reported use of substances to help with pain. The Veteran reported hearing voices that call him and alert him to things that were going to happen. The Veteran denied suicidal or homicidal ideation. The Veteran was assessed to have a GAF score of 45. The Veteran was referred to a psychiatrist for medication evaluation. The examiner noted that the Veteran was alert and oriented to person, place, time, and purpose. The examiner also noted that the Veteran was appropriately dressed, his eye contact was appropriate, and his grooming and hygiene were good. The examiner observed that the Veteran twisted a paper in his hands and fidgeted in his chair throughout the session. The examiner reported that his speech was soft but average in rate and tone. The examiner noted that the Veteran reported both auditory and visual hallucinations which he states are less than in the past. The examiner also noted that the Veteran was preoccupied with paranoid and grandiose delusions. The examiner stated that his mood was okay and his affect was appropriate to content. The examiner noted that the Veteran's sleep was described as very poor, his appetite was poor without substance, and his attention and concentration appeared limited. The examiner determined that the Veteran's intelligence appeared to be average, but his judgment and insight were poor. The Veteran continued interventions, to include psychotherapy and medication, which the Veteran reported improved his mood and sleep, and reduced his nightmares. In June 2008, the Veteran was afforded a VA examination. The Veteran reported regular nightmares, thoughts of death and dying, and sleep impairment. He also reported increased forgetfulness, irritation, hypervigilance, crying spells, and startled response to unexpected loud noises. He further reported occasional feelings of hopelessness and worthlessness. The Veteran noted that he gets nervous around his neighbor and is suspicious of him. The Veteran also reported that his memories of Vietnam are triggered by seeing Vietnamese people. He reported homicidal ideation and past suicidal ideation. The Veteran stated that he continues to drink approximately a six pack of beer within a two-day period. The Veteran denied current legal or serious financial problems. The examiner stated that the Veteran had GAF scores of 55, 50, and 43. The examiner noted that the Veteran had a history of impulsivity. She stated that the Veteran's judgment was questionable. The examiner observed that the Veteran was alert and oriented, and his memory functions were grossly intact. The examiner noted that the Veteran had mild impairment in concentration and his speech was somewhat impaired in that it was circumstantial and a bit fragmented. The examiner also stated that thought processes and thought content were marked by paranoid ideation. She stated that the Veteran appeared to avoid being seen by substance abuse counselors, likely due to his continuing use of substances. The examiner stated that this likely influences his psychotic processes and depression as well at this point. She further noted that he suffers with chronic pain which causes him stress. She stated that due to his advanced age, limited benefit from treatment, and the chronicity of his symptoms, the Veteran's prognosis is guarded. An October 2008 VA individual session mental health note indicates that the Veteran received continued treatment for his mental health issues, to include addiction therapy. The examiner noted that the Veteran's mood seemed mildly depressed with congruent affect. The examiner reported that the Veteran denied suicidal ideation and homicidal ideation. The examiner determined that he was not seen as a danger to himself or others at the time. The examiner also reported that the Veteran seemed to demonstrate good insight into his present situation. In a November 2008 private mental health examination, the Veteran reported a series of relationships, resulting in two marriages. The Veteran stated that he worked in construction for 15 years, but for the last 10 years, he had worked odd jobs. The Veteran reported feeling anxious, tense and nervous. He also reported being fearful, worried, and depression. The Veteran reported a history of suicidal thoughts, but no history of attempts. He reported that his relationship with his granddaughters and spouse act as barriers to suicide or homicide. He also denied any current homicidal thoughts or plans. However, he reported thoughts or fantasies about hurting someone, wishing he was dead, intentional self-mutilation. The examiner observed that the Veteran picked excessively at his nails, stating that when he was not picking he was breaking the head off a pencil with his fingernails. The examiner also observed that the Veteran's speech was poorly articulated. The examiner described the Veteran's mood as sad and his affect as flat. He also stated that the Veteran's emotional state was significant for motor tension, simmering anger, insomnia and recurrent thoughts of hopelessness. The examiner stated that the Veteran's comprehension was good and his social judgment appeared to be fair. The examiner also stated that the Veteran's critical judgment was poor based on his reckless conduct, reporting that the Veteran availed himself to the mental treatment community, but still considered himself to be dangerous. The examiner went on to state that his diagnostic results indicate that he may manifest a clinically severe neurotic or psychotic disorder. The examiner stated that the Veteran expressed unusual, unconventional ideas, and his ideational associations may be rather loose. The examiner also determined that his obsessive ruminations were correlated with unoriginal thinking. The examiner noted the Veteran's poor control of self-destructive impulses. The examiner stated that the Veteran was not an imminent danger, but he recommended that the Veteran receive intense anger management treatments and encouragement to disown his guns. The examiner determined that the Veteran had a GAF score of 35. The Board notes that the Veteran was afforded a VA examination in December 2009; however, the findings in this examination were mostly indeterminative with speculation and inconsistent with the Veteran's medical history and previously service-connected PTSD. Moreover, the Veteran's prior diagnoses were dismissed without adequate explanation for such findings. Therefore, the Board finds it to be of low probative value for the purposes of adjudicating this claim. In a January 2010 Notice of Disagreement, the Veteran stated that he had been treated for PTSD since 2000. He asserted that his doctors said he has severe PTSD, stating that his GAF score was always between 45 and 50. In an April 2011 VA mental health follow-up, the Veteran stated that his wife told him that his medication had a positive effect. The Veteran stated that the medication helped keep his mind off of things. He also denied suicidal thoughts, but admitted to chronic morbid thoughts. The examiner noted that the Veteran had arousal symptoms. The Veteran denied recent illicit substance abuse. The examiner reported a GAF score of 48. In a July 2011 Mental Residual Functional Capacity Questionnaire, the Veteran's physician reported, and his therapist affirmed, that the Veteran exhibited symptoms of marked restriction of activities of daily living, marked degree of difficulty in maintaining social functioning, frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely and appropriate manner (commonly found in a work setting), and three expected episodes of decomposition in work or work-like settings which cause the Veteran to withdraw from that situation or to experience exacerbation of signs and symptoms for a period lasting at least two weeks. They also noted marked limitation on ability to understand, carry out and remember instructions, moderate limitation to respond appropriately to supervision, marked limitation to respond appropriately to co-workers, marked limitation to respond appropriately to customary work pressures, moderate limitation to perform simple tasks, moderate limitation to perform repetitive tasks and marked limitation of completing work related activities in a normal workday or workweek. In an August 2011 VA examination, the examiner summarized the Veteran's level of occupational and social impairment as occupational and social impairment with reduced reliability and productivity. The examiner noted recurrent and distressing recollections of the event, including images, thoughts or perceptions, recurrent distressing dreams of the event, and intense psychological distress at exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event. The examiner also noted the Veteran's efforts to avoid thoughts, feelings or conversations associated with the trauma, efforts to avoid activities, places or people that arouse recollections of the trauma, and feelings of detachment or estrangement from others. The examiner reported symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or work-like setting. At a September 2017 Board Hearing, the Veteran stated that he had problems being around people, especially family, back in 2008. He also stated that he always had trouble sleeping and he used to have nightmares of seeing dead people and feeling them grabbing him. He stated that he didn't go out in public, and that his wife did everything for him. He also stated that he was on guard at all times, and that he liked to be in the dark. He reported consistent morbid thoughts and an urge to hurt others. He reported that he doesn't like guns around him, but he kept a weapon with him while in his house at all times. He further reported a loss of short term memory. The Veteran's wife stated that the Veteran would snap when out shopping. She also stated that his medication initially worked, but as he got worse, his dosage was increased. She stated that the Veteran had issues with concentration. She stated that the Veteran was resigned to stay in the yard all the time or sit outside, and isolate himself. After consideration of the evidence of record, the Board finds that, throughout the entire appeal period, the assignment of a 70 percent rating is appropriate. Throughout the pendency of the claim, Veteran has consistently shown symptoms of deficiencies in most areas, including in judgment, impaired impulse control, and an inability to establish and maintain effective relationships. The Veteran also has a history of morbid thoughts and suicidal ideation. Therefore, the Veteran's symptoms more closely approximate a 70 percent disabling rating. The evidence of record does not show that, at any period, the Veteran's symptoms produce total occupational and social impairment as to warrant a 100 percent rating. While the Veteran has suicidal ideation and occasional homicidal ideation, the record does not establish that this ideation rises to the level of the Veteran being a persistent danger of hurting himself or others. There has also been no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living, or disorientation to time or place. While there has been some evidence of delusion or hallucination, it is not shown that the instances arise to the level of being classified as persistent in nature. Moreover, while the record indicates some memory loss, it does not show memory loss so severe that the Veteran forgets the names of close relatives, his own occupation, or his name. Therefore, a 100 percent rating is not warranted. In reaching this decision, the Board has considered the Veteran's lay statements and the supporting statements submitted on his behalf. The Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating now assigned. To the extent he argues his symptomatology is more severe, the Veteran's statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general lay assertions that a rating higher than 70 percent is warranted. Accordingly, the Board finds that a 70 percent rating is warranted prior to August 31, 2011, but the evidence of record weighs against a finding of a disabling rating in excess of 70 percent throughout the appeals period. 38 C.F.R. § 4.130. II. TDIU The Veteran has asserted that the proper effective date of his TDIU is prior to August 31, 2011. The Board notes the issue of a TDIU was raised in the record and adjudicated by the RO in December 2009, subsequent to the submission of a formal application for a TDIU on November 30, 2009. The Veteran contends that his service-connected PTSD is responsible for his inability to maintain employment during that period. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (2017). A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). For the Veteran to prevail on a claim for a TDIU, the sole fact that the Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether the Veteran is entitled to a TDIU, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment means, essentially, that the work provides income above the poverty level established by the United States Department of Commerce, without benefit of protected family employment or a sheltered workshop. 38 C.F.R. § 4.16(a) (2017). A TDIU may be assigned where the schedular rating is less than total when the claimant is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(2) (2017). The Veteran has asserted that he is unable to find and maintain substantially gainful employment due to his service-connected PTSD. Per the order of this decision, the Veteran's PTSD has a singular rating greater than 60 percent. Therefore, the service-connected disability met the schedular criteria for a TDIU for the entire appeals period. 38 C.F.R. § 4.16(a) (2017). The record of evidence shows that the Veteran worked in construction for 15 years after separation from service. The November 2008 private mental health examination also indicates that the Veteran's highest level of education was technical college, where the Veteran earned a certificate in automotive repair. Based on the November 2009 VA 21-8940 form, the Veteran has not worked since 2007. In a June 2008 VA examination, the examiner stated that, due to his advanced age, limited benefit from treatment, and the chronicity of his symptoms, his prognosis is guarded. In a November 2008 private mental health examination, the Veteran stated that he was terminated about two years before, because of pain that interfered with his cleaning duties. In an April 2009 Social Security Administration (SSA) record, the Veteran self-reported that he last worked as a janitor in 2007. The Veteran reported that he stopped working due to his conditions of back pain and PTSD worsening to the point that he could no longer work. The Board notes that SSA subsequently found the Veteran to have become disabled since December 2007. In a November 2009 response to a request for employment information, the Veteran's last employer for his janitorial position stated that the Veteran was terminated for unsatisfactory work. No other details regarding termination were provided. In a January 2010 Statement in Support of Claim, the Veteran asserted that he could not work anywhere because of his PTSD. In a July 2011 Mental Residual Functional Capacity Questionnaire, the Veteran's physician reported, and his therapist affirmed, that the Veteran exhibited symptoms of marked restriction of activities of daily living, marked degree of difficulty in maintaining social functioning, frequent deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely and appropriate manner (commonly found in a work setting), and three expected episodes of decomposition in work or work-like settings which cause the Veteran to withdraw from that situation or to experience exacerbation of signs and symptoms for a period lasting at least two weeks. They also noted marked limitation on ability to understand, carry out and remember instructions, moderate limitation to respond appropriately to supervision, marked limitation to respond appropriately to co-workers, marked limitation to respond appropriately to customary work pressures, moderate limitation to perform simple tasks, moderate limitation to perform repetitive tasks and marked limitation of completing work related activities in a normal workday or workweek. The Board finds that the evidence of record is at least in equipoise of a TDIU prior to August 31, 2011. The mental health residuals questionnaire that was affirmed by the Veteran's therapist and his physician is probative in nature and weighs in favor of a finding of unemployability. While the evidence suggests that there were separate, non-service-connected issues that may have contributed to the Veteran's inability to work prior to 2011, the June 2008 medical evidence weighs in favor of unemployment due to the Veteran's PTSD. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that TDIU is warranted, effective November 30, 2009, the date of filing for a TDIU. III. DEA Benefits Under Chapter 35 The Veteran claims an earlier effective date for DEA benefits pursuant to 38 U.S.C., Chapter 35. The Veteran was awarded eligibility to DEA in a September 2013 rating decision, effective August 31, 2011, based upon the RO's finding that he was permanently unable, as of that date, to secure or follow a substantially gainful occupation, and hence, was entitled to a TDIU. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113 (2012). Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 3501 (a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113 (3). In the case of a veteran who is alive, the conditions for basic eligibility for DEA include: (1) the Veteran's discharge from service under conditions other than dishonorable; and (2) the Veteran has a permanent total service-connected disability. 38 C.F.R. § 3.807(a) (2017). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). Permanence of disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501 (a)(7). In this case, since the effective date for DEA benefits is directly related to a finding that the Veteran had a total disability that was permanent in nature by virtue of his TDIU rating, an effective date of November 30, 2009, for Chapter 35 benefits is warranted as the Veteran has been granted TDIU from this effective date. ORDER Entitlement to a disabling rating of 70 percent, but no higher, prior to August 31, 2011, for PTSD, is granted. Entitlement to a disabling rating in excess of 70 percent after August 31, 2011, for PTSD, is denied. Entitlement to an effective date of November 30, 2009, but no earlier, for award of a TDIU is granted. Entitlement to an effective date of November 30, 2009, but no earlier, for eligibility to DEA under 38 U.S.C. Chapter 35 is granted. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs