Citation Nr: 18143346 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-00 643 DATE: October 18, 2018 ORDER An effective date prior to July 28, 2011, for the award of service connection for hypertension is denied. An effective date prior to August 22, 2014, for the assignment of a 70 percent rating for posttraumatic stress disorder (PTSD) and major depression is denied. An effective date prior to August 22, 2014, for the award of a total disability rating based on individual employability (TDIU) due to service-connected disabilities is denied. An effective date prior to August 22, 2014, for the award of Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Army from June 2001 to July 2011, including more than 4 years of foreign service. 2. The claim giving rise to the grant of service connection for hypertension was received prior to the Veteran’s exit from service; entitlement arose prior to the effective date, which corresponds with the date of separation from active duty. 3. It is not factually ascertainable that the Veteran met the criteria for a 70 percent rating for his psychiatric disability prior to August 22, 2014. 4. The Veteran was first entitled to a TDIU effective July 28, 2011; the claim for entitlement was received on August 22, 2014. 5. In May 2015, the Veteran was granted DEA benefits effective August 22, 2014, upon the finding that he was found permanently and totally disabled from that date; there is no evidence that the Veteran ever sought such benefits, had permanent total service-connected disability, or was otherwise eligible for DEA benefits prior to such date. CONCLUSIONS OF LAW 1. The criteria for establishing an effective date prior to July 28, 2011, for the grant of service connection for hypertension have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date prior to August 22, 2014, for the assignment of a 70 percent rating for PTSD and major depression have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code (DC) 9411. 3. The criteria for an effective date earlier than August 22, 2014, for the grant of a TDIU have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 4. The criteria for an effective date earlier than August 22, 2014, for the award of DEA benefits have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is currently seeking earlier effective dates for several awards. Hypertension First, the Veteran has been awarded service connection for hypertension effective July 28, 2011. The assignment of effective dates is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. If a claim is received within one year of a veteran’s separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. His initial service connection claim was received on June 25, 2010 as part of a joint Department of Defense/VA Disability Evaluation System pilot program. Although the claim was denied in an August 2011 rating decision, the Veteran requested to reopen the claim on a form dated August 21, 2014. Service connection was subsequently awarded in a May 2015 rating decision. Given that the initial claim was submitted as part of the joint pilot program, it was received prior to the Veteran’s separation from service. Thus, the assigned effective date of July 28, 2011, corresponds to his separation date. Medical evidence establishes that the Veteran’s hypertension arose prior to this date, although the exact onset is not ascertainable from the record. In this respect, the earliest notation of hypertension is found in a December 2008 service treatment record (STR), and an April 2015 VA examiner corroborated this onset date. However, a July 2016 VA examiner noted the onset as 2011. Regardless, both effective dates indicate an onset prior to the Veteran’s separation from service. Considering the above, an effective date prior to July 28, 2011, is not warranted for the grant of service connection for hypertension. This corresponds to the date of separation from active duty and is the earliest possible assignable effective date for this award. Thus, the appeal is denied. Psychiatric Disability Next, the Veteran has been awarded a 70 percent rating for his psychiatric disability effective August 22, 2014. In claims for increased disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). His disability has been rated in accordance with DC 9411. Per the rating criteria, a 70 percent rating is warranted upon evidence of 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 work-like setting); and inability to establish and maintain effective relationships. Upon review of the record, the Veteran is not entitled to an effective date earlier than August 22, 2014, for the award of a 70 percent rating for his psychiatric disability, as it is not factually ascertainable that the assigned rating was warranted prior to this date. Instead, medical evidence prior to August 22, 2014, reflects a history of symptoms including depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. A September 2012 VA examiner assessed these symptoms as productive of occupational and social impairment with reduced reliability and productivity, which corresponds with a 50 percent rating. An increase in the severity of the Veteran’s disability is not apparent in the record until an April 2015 VA examination, during which additional symptoms of weekly panic attacks, flattened affect, circumstantial speech, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances were observed. Upon the Veteran’s testimony, the examiner concluded that he was functionally impaired due to avoidance, irritability, anxiety, depression, memory problems, impaired concentration, and fatigue. Accordingly, the assigned rating corresponds with the date that the increased rating claim was received, as no other VA examination or medical evidence reflects the level of severity commensurate with the criteria for the assigned rating prior to that time. As the level of impairment contemplated by the criteria was not evident at any point prior to August 22, 2014, an earlier effective date for the assignment of a 70 percent rating for the Veteran’s psychiatric disability is not warranted. Accordingly, the appeal is denied. TDIU Further, the Veteran contends that an effective date prior to August 22, 2014, is warranted for the award of a TDIU. Again, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Here, the earliest date on which the Veteran meets the preliminary schedular criteria for entitlement to a TDIU is July 28, 2011. The record indicates that he was unemployable at that time due to the combined impact of his service-connected disabilities, as based upon the Veteran’s own testimony and the opinions of multiple VA examiners. The claim giving rise to this award was submitted on August 22, 2014, following the date that entitlement arose. As such, the effective date for the award of a TDIU is the later of those dates: August 22, 2014, corresponding with the date that the claim was received. Accordingly, the Veteran is in receipt of the earliest effective date under VA laws and regulations, and the appeal is hereby denied. DEA Finally, the Veteran contends that an effective date prior to August 22, 2014, is warranted for the award of DEA benefits. Eligibility to DEA benefits under Chapter 35 are as follows: (1) The veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. § 3510 (West 2014); 38 C.F.R. § 3.807(a) (2016). In May 2015, the Veteran was granted eligibility to DEA benefits from August 22, 2014, based on a finding that he had a total service-connected disability, permanent in nature, effective that date. As this effective date was directly predicated on a finding that the Veteran had permanent and total disability due to service-connected disabilities, it is the earliest possible date he could have established eligibility for DEA benefits on that basis. Thus, the remaining question for consideration is whether there is another basis by which such eligibility could be established prior to August 22, 2014. As the Veteran is still alive, the regulations relating to service-connected death or existence of a permanent total service-connected disability at death do not apply. The only remaining basis for eligibility requires, as a threshold matter, current active duty, which does not apply to the Veteran. Consequently, there is no other basis upon which any eligibility for DEA benefits could be established in this case, much less eligibility warranting an effective date prior to August 22, 2014. Therefore, this is the earliest possible effective date for an award of DEA benefits, and the appeal is denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel