Citation Nr: 18151663 Decision Date: 11/19/18 Archive Date: 11/19/18 DOCKET NO. 16-36 432 DATE: November 19, 2018 ORDER Entitlement to an effective date of August 28, 2013, but not earlier, for the assignment of a 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder is granted. Entitlement to an effective date of August 28, 2013, but not earlier, for the award of a total disability rating based on individual employability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Entitlement to benefits for a 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder became factually ascertainable on August 28, 2013, but not earlier. 2. Resolving reasonable doubt in his favor, since August 28, 2013, the manifestations of the Veteran’s service-connected disabilities have been sufficiently incapacitating as to result in unemployability. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 28, 2013, but no earlier, for the assignment of the 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder are approximated. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). 2. The criteria for entitlement to an effective date of August 28, 2013, for TDIU have been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 3.400, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to March 1973. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a March 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in San Diego, California. Neither the Veteran nor his representative has raised any issues with respect to VA’s duty to notify or assist. The Board finds that no deficiencies in the duty to notify or assist are otherwise apparent from the record. Effective Date 1. Entitlement to an effective date prior to May 30, 2014, for the assignment of a 100 percent rating for posttraumatic stress disorder (PTSD) with major depressive disorder. 2. Entitlement to an effective date prior to May 30, 2014, for the award of a total disability rating based on individual employability (TDIU) due to service-connected disabilities The Veteran is seeking an effective date prior to May 30, 2014, for the assignment of a 100 percent rating for PTSD with a major depressive disorder and the award of the TDIU. The Board will discuss the assignment of an earlier effective date for both claims together because they arise from the same facts and circumstances and the issue of entitlement to a TDIU as part and parcel of the increased rating claim on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 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. 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 100 percent rating is warranted upon evidence of 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name. 38 C.F.R. § 4.130. Upon review of the record, the Veteran is entitled to an effective date earlier than May 30, 2014 for both his assignment of 100 percent for his service-connected PTSD and an award of TDIU. The Board finds that it is factually ascertainable that the Veteran manifested total occupational and social impairment and the inability to secure and maintain gainful employment before May 30, 2014. The Veteran filed a formal claim for an increased rating for his service-connected PTSD on September 10, 2013. A May 2014 rating decision granted a temporary evaluation of 100 percent, effective March 18, 2012, a 50 percent disability rating from September 1, 2012, and a 70 percent evaluation from September 10, 2013 for his service-connected PTSD. The Veteran submitted an application for entitlement to TDIU and it appears also to include his claim for an increased disability rating for PTSD in May 2014. See May 2014 VA 21-526EZ and Third-Party Correspondence. The Board finds that the May 2014 Third Party Correspondence should be viewed as an informal notice of disagreement (NOD) to the May 2014 rating decision. With that finding, the Veteran’s effective date for the award of a 100 percent evaluation for his PTSD should at least be September 10, 2013, if it was factually ascertainable that the assigned rating was warranted at that time. To that end, the Veteran’s VA psychiatrist, B.A., M.D., submitted an August 28, 2013 statement detailing the severity of the Veteran’s service-connected PTSD. The VA psychiatrist found that that due to the severity of the Veteran’s symptoms he would not benefit from a return to work. The doctor noted that the Veteran’s symptoms were chronic and resistant to treatment. Therefore, the Board finds that it was factually ascertainable that a 100 percent disability rating was warranted August 28, 2013. The Veteran exhibited total occupational and social impairment at that time. Moreover, it was also apparent based on the evidence of record that the Veteran was unable to secure and maintain gainful employment at that time as well. Thus, as a TDIU as part and parcel of the increased rating claim on appeal, a claim for TDIU was implied based on the evidence on record at that time. The Veteran and his attorney contend that the Veteran’s effective date for the assignment of a 100 percent disability evaluation for PTSD and the award of a TDIU should be June 20, 2012, the date that the Veteran submitted a statement regarding his employment status and the severity of his service-connected PTSD. However, a claim was not received within a year of that date, therefore, an effective date of June 20, 2012 is not warranted. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). However, the Veteran is entitled to an effective date of August 28, 2013, for the assignment of a 100 percent rating for PTSD with a major depressive disorder and the award of the TDIU because it was factually ascertainable that the assigned rating was warranted at that time and the Veteran filed a claim (September 2013) within one year of that date. As such, and resolving all reasonable doubt and ambiguity in the Veteran’s favor, the Board finds entitlement to an earlier effective date for the assignment of a 100 percent disability evaluation for PTSD with depressive disorder and the award of a TDIU are warranted from August 28, 2013. From August 28, 2013, the Veteran has exhibited the inability to secure or follow a substantially gainful occupation as a result of his service-connected disabilities total occupational and social impairment as contemplated by the criteria for a 100 percent rating. The Veteran has also exhibited the inability to secure or follow a substantially gainful occupation because of his service-connected disabilities. (Continued on the next page)   Accordingly, an effective date of August 28, 2013, but not earlier, for the assignment of a 100 percent disability rating for PTSD with major depressive disorder and the award of a TDIU is warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel