Citation Nr: 18156909 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-62 852 DATE: December 11, 2018 ORDER Entitlement to an initial rating of 70 percent, but no higher, for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and bipolar disorder, prior to June 23, 2005 is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a 100 percent rating for an acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and bipolar disorder, from June 23, 2005 is granted, subject to the regulations governing the award of monetary benefits. Entitlement to an earlier effective date of December 29, 2003, for the award of a total disability rating based on individual unemployability (TDIU), is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an earlier effective date of December 29, 2003, for the award of Dependents’ Educational Assistance (DEA) benefits, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to June 23, 2005, the Veteran’s service-connected acquired psychiatric disorder to include PTSD and bipolar disorder symptoms and overall impairment have more nearly approximated deficiencies in most areas, but not total occupational and social impairment. 2. From June 23, 2005, the Veteran’s service-connected acquired psychiatric disorder to include PTSD and bipolar disorder symptoms and overall impairment have more nearly approximated total occupational and social impairment. 3. From the December 29, 2003 date of claim for service connection for PTSD, the Veteran’s service-connected PTSD and bipolar disorder rendered him unable to secure and follow a substantially gainful occupation. 4. The Veteran became permanently and totally disabled for purposes of DEA benefits on December 29, 2003. CONCLUSIONS OF LAW 1. Prior to June 23, 2005, the criteria for an initial rating of 70 percent, but no higher, for an acquired psychiatric disorder to include PTSD and bipolar disorder, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). 2. From June 23, 2005, the criteria for a 100 percent disability rating for an acquired psychiatric disorder to include PTSD and bipolar disorder, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. The criteria for an earlier effective date of December 29, 2003, for the award of a TDIU, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.1 -4.7, 4.16. 4. The criteria for an earlier effective date of December 29, 2003, for the award of DEA benefits, have been met. 38 U.S.C. § 3510; 38 C.F.R. §§ 3.807. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to December 1977. This matter came to the Board of Veterans’ Appeals (Board) on appeal from March 2014 and October 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the March 2014 rating decision, the RO awarded service connection for an acquired psychiatric disorder to include PTSD and bipolar disorder and assigned an initial 30 percent rating effective December 29, 2003, and a 70 percent rating from June 23, 2005. The Veteran disagreed with the RO’s determination, and a Statement of the Case was issued in October 2016. The Veteran perfected his appeal in December 2016. In the October 2016 rating decision, the RO granted entitlement to a TDIU, effective June 23, 2005. The RO also granted entitlement to Dependents’ Educational Assistance, effective June 23, 2005. The Veteran disagreed with the assigned effective dates, and a Statement of the Case was issued in July 2018. The Veteran perfected his appeal in August 2018. Ratings 1. Acquired psychiatric disorder to include PTSD and bipolar disorder Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous....” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The criterion for rating PTSD disorder is contained in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is warranted when there is objective evidence demonstrating 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 warranted when there is objective evidence demonstrating 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, for example, 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 objective evidence demonstrating 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, or 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; inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. The Veteran seeks an initial rating in excess of 30 percent for an acquired psychiatric disorder to include PTSD and bipolar disorder prior to June 23, 2005, and in excess of 70 percent thereafter. He contends that the ratings currently assigned do not reflect the severity of the disability. Prior to June 23, 2005 For the period prior to June 23, 2005, the evidence of record indicates that the Veteran’s acquired psychiatric disorder to include PTSD and bipolar disorder more nearly approximate the criteria for a 70 percent rating. In a November 2003 private treatment record, the Veteran reported symptoms of depression, mania, anxiety, headaches, sleeplessness, confusion, and the inability to focus. He exhibited a flight of ideas, push of speech, and broad affect. In a February 2004 private treatment record, the Veteran reported that he was really depressed, and experiencing crying spells and anxiety spells. He indicated that his sleep cycle was out of control and that he felt exhausted all the time, as well as depressed. In a February 2004 statement, the Veteran reported trouble with controlling anger, stress, sex drive, and communication with other people. He noted having nightmares, sleep deprivation, depression, and anxiety. In this case, the evidence of record indicates that prior to June 23, 2005, the Veteran’s acquired psychiatric disorder to include PTSD and bipolar disorder was manifested by symptoms and impairment that more nearly approximate the criteria for an initial 70 percent rating, but no higher. As noted above, the Veteran had impaired impulse control with difficulty controlling his anger. The Veteran had consistently reported symptoms of depression, anxiety, sleep disturbance, and nightmares. He exhibited confusion and the inability to focus. The Veteran further reported his trouble with commincating with other people. Based on the evidence of record, including the medical records and the Veteran’s competent and credible statements, the Board finds that the Veteran’s symptoms and impairment more nearly approximate occupational and social impairment with deficiencies in most areas. The Veteran is not, however, entitled to a higher 100 percent rating prior to June 23, 2005. For example, in a November 2003 private treatment record, the Veteran reported that his relationship with his parents and siblings were better than it used to be. He indicated that he had a long-term girlfriend for the past ten years. Moreover, treatment records show that the Veteran did note experience symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting herself 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, own occupation, or own name. As such, an initial disability rating of 70 percent, but not higher, for the Veteran’s service-connected acquired psychiatric disorder to include PTSD and bipolar disorder, is warranted prior to June 23, 2005. 38 C.F.R. 4.130, DC 9411. As the preponderance of the evidence is against a higher rating, the benefit of the doubt is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. From to June 23, 2005 For the period from June 23, 2005, the evidence of record indicates that the Veteran’s acquired psychiatric disorder to include PTSD and bipolar disorder more nearly approximate the total occupational and social impairment required for a 100 percent rating. In a January 2006 private treatment record, Veteran reported that he was suicidal and took a lot of pills that morning. The Veteran stated, “feeling I want to do myself in.” He was admitted for suicidal ideation. The clinician noted that the Veteran heard auditory hallucinations and occasionally “hears voices.” The Veteran also exhibited a depressed mood for approximately one month, including difficulty sleeping, nightmares, and low mood. Symptoms of flat affect and dysphoria were also noted. A February 2006 private treatment record shows that the Veteran continued to display depressive symptoms that were impairing his ability to function and return to work. The Veteran was afforded a VA medical examination January 2007. He was neat and clean, but his attire was inappropriate considering the freezing temperatures (i.e. sleeveless t-shirt, no coat). His mood was bordered on euphoric and his affect was somewhat expansive. The Veteran’s thought processes were somewhat illogical and disorganized unless directed. The Veteran reported that he sometimes experienced people talking to him like on a radio, like they were out to get him. The examiner noted that it gets him paranoid, so he does not watch television or listen to the radio. The Veteran’s memory was adequate for the purposes of the exam, but he complained that he had to write what he does every day, because he cannot remember. The Veteran underwent a VA medical examination in December 2010. The Veteran reported that he was hospitalized in 2009 for stress and felt somewhat suicidal and homicidal. He worried that if he had taken a drink, he would have decided to hurt someone. The Veteran noted his main problem was with anger and not being able to calm himself down. The Veteran admitted to suicidal feelings, but stated that he did not have a formal plan, but could think of one really quick. The Veteran stated that drinking evokes his suicidal and impulsive urges, and that when he gets upset, he does not get over things, and tends to ruminate on things. The Veteran stated that his girlfriend was the only person he trusts, and it was fairly hard for him to trust people. He reported being a hermit and feeling detached from society at large. The Veteran stated that he did not feel like he had a future. He reported spiritual contentment in knowing that his next life would not be like this life. The Veteran indicated that he does not participate in pleasurable activities. He described himself as being paranoid 24 hours a day, having problems sleeping, especially when he has nightmares. The Veteran noted that he was irritable and typically avoids people to keep himself from getting angry. The Veteran was tangential and somewhat disorganized, and the examiner continually redirected him to maintain a linear flow of conversation. His ability to provide a linear timeline of information was poor and he tended to jump from year to year, as such the accuracy of the dates within the assessment were fairly questionable. The Veteran had difficulty sitting still and sustaining attention. There appeared to be some problems with impulse control, and he tended to ramble in conversations. The Veteran exhibited an agitated mood, and the examiner noted that the Veteran’s overall presence made him uncomfortable. The Veteran denied suicidal or homicidal ideation, but reported fleeting thoughts from time to time. The examiner concluded that the Veteran experienced severe difficulties across the spectrum of functioning. Based on the evidence of record and resolving reasonable doubt in favor of the Veteran, the Board finds that from June 23, 2005, the Veteran’s PTSD was manifested by symptoms and impairment that more nearly approximate the total occupational and social impairment required for a 100 percent rating. The Veteran has exhibited symptoms of gross impairment in thought processes or communication, hallucinations; and persistent danger of hurting self or others. Specifically, a January 2006 private treatment record shows that the Veteran was hospitalized for a suicide attempt. The clinician noted that the Veteran also experienced auditory hallucinations and occasionally heard voices. A February 2006 private clinician concluded that the Veteran continued to display depressive symptoms that were impairing his ability to function and return to work. The January 2007 VA examination report shows that the Veteran’s thought processes were somewhat illogical and disorganized unless directed. The Veteran described people talking to him like on a radio, as if they were out to get him. He did not watch television or listen to the radio, since it caused paranoia. The Veteran complained that he had to write what he did every day, because he could not remember. Moreover, a December 2010 VA examination report shows that the Veteran reported that he was hospitalized in 2009 for being suicidal and homicidal, and reported current fleeting thoughts of suicidal and homicidal ideation from time to time. He had problems with anger and an inability to calm himself down. The Veteran was irritable and avoided people to keep himself from getting angry. He described himself as being a hermit and detached from society at large. The Veteran only trusted his girlfriend, due to difficulties with trusting people. Additionally, the VA examiner concluded that the Veteran experienced severe difficulties across the spectrum of functioning. Based on the evidence discussed in detail above, the Board finds that from June 23, 2005, the Veteran’s service-connected acquired psychiatric disorder to include PTSD and bipolar disorder symptoms have been productive of symptomatology and impairment that more nearly approximate the total occupational and social impairment required for a 100 percent rating. A 100 percent rating is therefore warranted from June 23, 2005 for an acquired psychiatric disorder to include PTSD and bipolar disorder. 38 C.F.R. 4.130, DC 9411. Effective Date 2. TDIU The effective date provisions for awards of increased disability compensation include a general rule which is that an award based on a claim for increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 (a). The corresponding VA regulation expresses this rule as “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (o)(1). For increased rating claims, if the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is ascertainable that the increase occurred as long as the claim for the increased disability rating was received within a year of the date that the increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997); Quarles v. Derwinski, 3 Vet. App. 129, 134-135 (1992). A TDIU claim is treated as a claim for increased compensation, and the effective date rules for increased compensation apply to the TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). Under the applicable regulations, a TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. Under 38 C.F.R. § 4.16, if there is only one service- connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In light of the above decision, the Veteran is service-connected for an acquired psychiatric disorder to include PTSD and bipolar disorder, rated at 70 percent disabling prior to June 23, 2005, and 100 percent disabling, thereafter. From June 23, 2005, the Veteran has been in receipt of TDIU, thus the Board does not need to consider this time period in the analysis below. Prior to June 23, 2005, the Veteran was in receipt of a combined 70 percent rating as of December 29, 2003. Under these circumstances, the Veteran does meet the percentage requirements set forth in section 4.16(a) for consideration of TDIU during the period he has reported unemployability as a result of his service-connected disability. Thus, the next question for consideration is whether his service-connected disability prevented him from obtaining and maintaining substantially gainful employment. VA’s General Counsel has concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In discussing the unemployability criteria, the Court, in Moore v. Derwinski, 1 Vet. App. 83 (1991), indicated in essence that the unemployability question, i.e., the ability or inability to engage in substantial gainful activity, must be looked at in a practical manner, and that the thrust of the inquiry was whether a particular job was realistically within the capabilities, both physical and mental, of the Veteran involved. In a November 2003 private treatment record, the Veteran reported that his last job was at a state hospital in 1997. He indicated that he was having physical problems and worked at the job for 90 days. A December 2003 VA clinical record indicates that the Veteran was not employed. A July 2014 Social Security Administration Record (SSA), indicates that the Veteran had been in receipt of benefits for unemployability for affective disorders since January 1984. In February 2015, the Veteran submitted VA Form 21-8940 TDIU application, in which he reported that his service-connected PTSD and bipolar disorder prevented him from obtaining and maintaining gainful employment. He indicated that he last worked full-time in 1978, and was last employed part-time in 1994. He reported that he had obtained a GED in 1990, and received training for welding blueprints in 1980, prior to becoming too disabled to work. The Veteran indicated that he did not have any education or training since becoming too disabled to work. Upon consideration of the record in its entirety, with particular attention to the medical records and competent and credible lay statements, the Board finds that the Veteran’s service-connected acquired psychiatric disorder, to include PTSD and bipolar disorder, rendered him unable to secure and follow a substantially gainful occupation from December 29, 2003. Although no medical professional has expressed an opinion as to whether the Veteran’s service connected disability rendered him unemployable, the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Id. at 1354 (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). For the foregoing reasons, the Board finds that, in light of the Veteran’s limited educational and occupational history, his acquired psychiatric disorder, to include PTSD and bipolar disorder, prevented him from securing and following substantially gainful employment from December 29, 2003. In addition, the issue of entitlement to a TDIU was raised as part and parcel of the claim for a higher initial rating for PTSD which was filed in connection with the grant of service connection for this disability effective December 29, 2003. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). See also Harper v. Wilkie, No. 16-3519 (Vet. App. Dec. 6, 2018) (the Veteran’s notice of disagreement with the initial rating assigned in connection with the grant of service connection, combined with evidence of unemployability, resulted in the issue of entitlement to a TDIU from the effective date of the grant of service connection being on appeal). The date of claim for purposes of the effective date for the grant of TDIU is therefore December 29, 2003, which is the effective date of the grant of service connection for PTSD and bipolar disorder. As the date entitlement arose was prior to this date, entitlement to a TDIU from the December 29, 2003 date of claim for service connection for PTSD is warranted. 3. DEA The Veteran seeks entitlement to DEA benefits prior to June 23, 2005. Regarding the earlier effective date for DEA, Chapter 35 benefits, DEA benefits are payable to the child, spouse, or surviving spouse of a Veteran if the following conditions are met: (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; 38 C.F.R. § 3.807 (a). In an October 2016 rating decision, the Veteran was granted basic eligibility to DEA benefits, effective June 23, 2005, the date which he was adjudicated to be 100 percent disabled. In the above decision, the Veteran has been granted a TDIU from December 29, 2003. Therefore, the Veteran has been adjudicated to have permanent and total disability as of December 29, 2003. Entitlement to DEA benefits from December 29, 2003, is therefore warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel