Citation Nr: 1806466 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-29 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date prior to June 15, 2001 for a 100 percent rating for posttraumatic stress disorder (PTSD). 2. Entitlement to Dependency and Indemnity Compensation (DIC) pursuant to 38 U.S.C. § 1318. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from July 1941 to November 1945, including service in Europe during World War II. He died in November 2008. The appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Chicago, Illinois, Regional Office (RO), granting service connection for PTSD and assigning a 100 percent rating effective June 15, 2001. Also on appeal is a November 2010 rating decision of the VA RO in Montgomery, Alabama, which denied DIC benefits under 38 U.S.C. § 1318. The appellant presented sworn testimony at a hearing before the undersigned in September 2017. This matter was before the Board in May 2008, at which time it was remanded for the RO for readjudication of the proper effective date of service connection for PTSD pursuant to Section 7 of the Veterans Claims Assistance Act of 2000 (VCAA). The Board notes that at that time, the issue was characterized as entitlement to an effective date prior to June 15, 2001 for service connection for PTSD. However, a review of the January 2005 Notice of Disagreement (NOD) shows that when the Veteran appealed the May 2004 rating decision, he was clearly seeking an earlier effective date for the 100 percent rating for PTSD, not just an earlier effective date for the grant of service connection. In the January 2005 NOD, the Veteran stated that he disagreed with the June 15, 2001 effective date assigned for what he called the award of "100% Service Connected Disability for PTSD." The Veteran further asserted that the proper effective date "of the award" should be 1993 instead of June 2001. Unfortunately, the Veteran passed before the RO could readjudicate the remanded effective date claim. The appellant, the Veteran's surviving spouse, was determined to be a proper substitute and continued with the appeal in the Veteran's place. In October 2010, the RO issued a rating decision granting an effective date of August 13, 1993 for service connection for PTSD and assigned a 30 percent rating for the period prior to June 15, 2001. The RO informed the appellant that the decision "represented a total grant of benefits sought on appeal," even though the effective date of the 100 percent rating had not been changed. Since that time, the appellant has repeatedly asserted that the effective date of the Veteran's 100 percent rating should be August 13, 1993. As it is clear from the record that the benefit sought by the Veteran prior to his death was an earlier effective date for the award of a 100 percent rating for PTSD and the appellant has continued to make this assertion, the Board finds that the October 2010 rating decision did not constitute a total grant of the benefit sought on appeal and, therefore, the appeal remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Although a Supplemental Statement of the Case was not issued as to this claim, the Board finds that remand is not necessary as the appellant's claims are granted in full in this decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The Veteran's claim of entitlement to service connection for a psychiatric disorder was denied in unappealed rating decisions issued in January 1949 and September 1984. 2. The Veteran's application to reopen his previously denied claim for service connection for a psychiatric disorder was received by VA on August 13, 1993 and was ultimately denied by the Board as "not well grounded" in a November 1999 decision. 3. In June 2001, the Veteran again sought to reopen his previously denied claim and service connection was ultimately granted. 4. Throughout the appeal period the Veteran's service-connected PTSD was productive of a demonstrable inability to obtain or retain employment. 5. The Veteran died in November 2008. 6. The Veteran was in receipt of a 100 percent rating for his service-connected PTSD for at least ten years immediately preceding his death. CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for PTSD have been met beginning August 13, 1993. 38 U.S.C. §§ 1154(a), 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.16(c), 4.126, 4.129, 4.130, 4.132, Diagnostic Code 9411 (1993, 2017). 2. The criteria for an award of DIC benefits have been met. 38 U.S.C. §§ 1318, 7105 (2012); 38 C.F.R. §§ 3.22, 3.105(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Earlier Effective Date for a 100 Percent Rating for PTSD The appellant seeks an effective date of August 13, 1993 for the award of a 100 percent rating for the Veteran's service-connected PTSD. The Veteran originally sought service connection for a psychiatric disability that was denied in a January 1949 rating decision. The Veteran did not appeal that rating decision and it became final. On September 1984, VA received the Veteran's application to reopen his previously denied claim. A rating decision dated September 1984 continued to deny the Veteran's claim. He did not appeal the September 1984 rating decision and it also became final. See 38 U.S.C. § 7105(c); see also 38 C.F.R. §§ 3.104 (a), 20.200, 20.302(a) and (b), 20.1103. On August 13, 1993, VA received another application to reopen the previously denied claim. The Veteran appealed the November 1993 rating decision denying his claim to reopen and in November 1999 the Board denied his claim to reopen as "not well grounded." In June 2001, within two years of the enactment of the VCAA, the Veteran again sought to reopen his claim. Service connection for PTSD was granted and a 100 percent rating assigned effective June 15, 2001. The Veteran appealed the effective date of the 100 percent rating. In its May 2008 remand, the Board noted that Section 7 of the VCAA provides that in the case of a claim for benefits finally denied or dismissed as not well grounded beginning on July 1999 and ending on the date of enactment of the VCAA (November 9, 2000), for which readjudication is requested within two years after enactment of the VCAA (i.e., on or before November 9, 2002), the Secretary of Veterans Affairs shall, upon the request of the claimant or on the Secretary's own motion, order the claim readjudicated under chapter 51 of such title, as amended by this Act, as if the denial or dismissal had not been made. See Section 7 of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The Board found that these provisions are applicable to the assignment of the effective date for service connection for PTSD in the present case because the Board denied the Veteran's claim for service connection for PTSD as not well grounded in November 1999, and the Veteran requested readjudication of the claim within two years of enactment of the VCAA. In its October 2010 rating decision, the RO applied these provisions to correctly determine that the effective date of service connection for PTSD is August 13, 1993, the date the Veteran's application to reopen was received by VA. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q) (the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later). Nevertheless, the RO assigned a 30 percent rating for PTSD from August 13, 1993 and a 100 percent rating from June 15, 2001. Thus, the issue in this matter is whether the criteria for a 100 percent rating for PTSD were met prior to June 15, 2001. The Board notes that the schedular criteria for psychoneurotic disorders that were in effect in August 1993 were amended effective November 7, 1996. See 61 Fed. Reg. 52695 (Oct. 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders) (2009). VA must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to November 7, 1996, Diagnostic Code 9411 provided that a 30 percent evaluation required definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and psychoneurotic symptoms that result in such reduction in flexibility, efficiency, and reliability levels as to produce definite social impairment. The term "definite" has been defined as "distinct, unambiguous, and moderately large in degree," representing a degree of social and industrial inadaptability that was "more than moderate but less than rather large." VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). A 50 percent evaluation required considerable impairment in the ability to establish or maintain effective or favorable relationships with people, and psychoneurotic symptoms that result in such reduction in reliability, flexibility, and efficiency levels as to produce considerable industrial impairment. A 70 percent evaluation required severe impairment in the ability to establish and maintain effective or favorable relationships with people; the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. A 100 percent evaluation required virtual isolation in the community, totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality, or demonstrable inability to obtain or retain employment. Further, the Court held that these criteria provide three independent bases for granting a 100 percent disability evaluation. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). In addition, VA promulgated 38 C.F.R. § 4.16(c), effective March 1, 1989, which stated that in cases where a mental disorder was assigned a 70 percent evaluation, and such mental disorder precluded a Veteran from securing or following a substantially gainful occupation, in such cases, the mental disorder shall be assigned a 100 percent schedular evaluation under the appropriate diagnostic code. See 54 Fed. Reg. 4280-01 (Jan. 30, 1989). 38 C.F.R. § 4.16(c) (1996) was repealed when the revised criteria for rating psychiatric disabilities became effective on November 7, 1996. 61 Fed. Reg. 52695 (Oct. 8, 1996). Under the rating criteria that became effective November 7, 1996, a 30 percent evaluation is warranted when it is productive of 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, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent evaluation is warranted for chronic adjustment disorder when the disorder causes occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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 difficulty in establishing and maintaining effective work and social relationships. A 70 evaluation requires 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 worklike setting); and an inability to establish and maintain effective relationships. Finally, a 100 percent evaluation 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; 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. The Board finds that the criteria for a 100 percent rating for PTSD have been met beginning August 13, 1993. As noted above, under the rating criteria in effect prior to November 1996, a 100 percent evaluation was for application where the evidence showed a demonstrable inability to obtain or retain employment due to psychiatric symptoms. See Johnson v. Brown, 7 Vet. App. 95, 97 (1994). Here, the evidence of record shows that throughout the appeal period the Veteran suffered from such severe deficiencies in memory and concentration such that he was incapable of obtaining or maintaining employment. During a May 1994 VA examination the Veteran reported that he would "lose time," sometimes forgetting what day and month it was, or what he was taking about. The VA examiner noted that the Veteran was 45 minutes late for his examination because he got confused about the time, and that the Veteran's wife also appeared at the examination because the Veteran did not trust his memory. Based on the interview and objective examination, the VA examiner found that the Veteran was hard to focus at times and took longer than average to complete the testing procedures. The examiner noted that the Veteran had to be refocused several times and reminded of expectations when completing tasks. The VA examiner also reported that the Veteran lacked confidence in his memory and judgment, did not pick up on new information or apply old information in a unique way as well as he should. The examiner opined that the Veteran may be challenged by everyday demands, feeling both more fearful and apprehensive than he once did. The Veteran also reported chronic sleep impairments. The Veteran's VA treatment records from 1997 through 2001 contain multiple entries noting the Veteran's memory and concentration problems. He was noted on multiple occasions to be an unreliable historian due to his memory lapses, and it was noted that he would often times forget to take his medication. At a January 2001 neuropsychiatric examination, the doctor noted that the Veteran did not have dementia or focal deficits, but that he was preoccupied with traumatic events in his remote past and that this disturbance interfered with his concentration and was perceived by the Veteran and his wife to be poor memory. In May 2001, the Veteran's treating physician opined that the Veteran suffered from significant cognitive impairment and was totally disabled due to PTSD. In light of these facts, the Board finds that the Veteran's psychological symptoms associated with PTSD caused him a demonstrable inability to obtain or retain employment. The evidence shows that the Veteran had a high school diploma and worked as a janitor for most of his adult life. With such severe memory loss and concentration deficits as describe above, it is less likely than not that the Veteran would have been able to complete occupational tasks. It is shown by the evidence that the Veteran's memory and concentration deficits caused him to "lose time," forget what he was saying, appear late for a VA examination and take longer than average to complete testing procedures. The May 1994 VA examiner noted that the Veteran exhibited difficulties assimilating new information or applying old information in a new way, which would certainly lead to problems in the work place. The examiner also opined that the Veteran may be challenged by everyday demands. Thus, the Board finds that the criteria for a 100 percent rating for PTSD were met as of August 13, 1993 and continuing throughout the appeal period. II. Entitlement to DIC VA pays DIC benefits to the surviving spouse of a deceased veteran who, at the time of his death, was in receipt of, or entitled to receive compensation for, a service- connected disability that was rated totally disabling if the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death. 38 U.S.C. § 1318(b). In this decision, the Board finds that the effective date of the Veteran's 100 percent rating for PTSD is August 13, 1993. Thus, as the Veteran was continuously rated at 100 percent for his service-connected PTSD for at least 10 years immediately preceding his death, DIC benefits under 38 U.S.C. § 1318 are warranted. ORDER Subject to the law and regulations governing payment of monetary benefits, an effective date of August 13, 1993 is granted for the 100 percent rating for PTSD. Entitlement to DIC under the provisions of 38 U.S.C. § 1318 is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs