Citation Nr: 20007785 Decision Date: 01/31/20 Archive Date: 01/29/20 DOCKET NO. 19-06 439 DATE: January 31, 2020 ORDER 1. A 70 percent rating for the Veteran’s service-connected psychiatric disability is granted throughout (from the earlier effective date of October 31, 2003), subject to regulations governing payment of monetary awards; a rating in excess of 70 percent for the psychiatric disability is denied. 2. A total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted from the earlier effective date of October 31, 2003, subject to regulations governing payment of monetary awards. REMANDED 3. Entitlement to an effective date prior to June 13, 2014 for the award of eligibility for Dependents’ Educational Assistance under 38 U.S.C. § 35 (DEA) is remanded. FINDINGS OF FACT 1. Throughout (from October 31, 2003), the Veteran’s psychiatric disability is reasonably shown to have been manifested by symptoms productive of occupational and social impairment with deficiencies in most areas; at no time is it shown to have been manifested by symptoms productive of total occupational and social impairment. 2. The Veteran’s service-connected psychiatric disability is now rated 70 percent throughout, from the earlier date of October 31, 2003, and is shown to have rendered her unable to maintain substantially gainful employment throughout. CONCLUSIONS OF LAW 1. A 70 percent (but no higher) rating is warranted for the Veteran’s psychiatric disability, throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (Code) 9400. 2. The schedular criteria for a TDIU rating are met and a TDIU rating is warranted throughout from the earlier effective date of October 31, 2003. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served in the Army National Guard and had acknowledged active duty service from September 1978 to May 1979, and periods of active for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters are before the Board on appeal from June 2017 and May 2018 rating decisions. 1. Entitlement to a 70 percent rating for the Veteran’s service-connected psychiatric disability is granted throughout. A September 2002 Social Security Administration (SSA) decision granted the Veteran SSA disability benefits beginning in June 2000, with a primary diagnosis of affective or mood disorder and a secondary diagnosis of mental retardation. On August 2004 diagnosis summary, the diagnoses were mood disorder not otherwise specified and cocaine abuse in partial remission. The Veteran sought to re-establish services for treatment of a depressive disorder. She had been on Depakote in the recent past until she ran out of medication. She reported having 4 children, 2 of whom were deceased and the 2 surviving sons in prison. Her depression symptoms included loss of pleasure in activities of daily living, decreased sleep, fatigue, and impaired concentration, noted to be of mild severity. Her mania symptoms included inflated self-esteem, increased rate of speech, pressure of speech, easy distraction, racing thoughts, increased activity, and irritability, noted to be of moderate severity with mixed recent episodes. Her anxiety symptoms included palpitations, dizziness, and phobias. She reported avoidance of activity and people, restricted affect, sleep problems, irritability and angry outbursts, and exaggerated startle. She was noted to have excessive speech, tangential at times, and difficulty focusing. She reported being most concerned about her rages with blackouts of her behavior during a rage. On mental status exam, she was fully oriented and her mood was within normal limits. Her motor behavior was restless and her speech pattern was excessive and pressured. She had recent memory loss related to a stroke in 1992. She denied hallucinations or delusions. Her insight and judgment were good. She had inconsistent impulse control and a history of self-harm in reaction to her murdered son’s birthdate. She reported a history of violence consisting of going into rages with no recall of her behavior. She reported a good support system of one or two good friends. There was no indication of a thought disorder. On October 2005 treatment, the diagnoses were mood disorder not otherwise specified and anxiety. The Veteran was fully oriented, her affect/mood was euthymic, and her motor activity was unremarkable. Her speech was clear and slightly pressured. Her thoughts were organized but slightly tangential. Her perceptions were normal. She reported sleep impairment. Her insight and judgment were noted as “some”. On June 2006 treatment, the diagnosis was mood disorder not otherwise specified. The Veteran reported poor sleep patterns and nightmares. Her cognition was distractible, and affect/mood was elevated. Her speech was pressured, and she had increased motor behavior. Her thought process was organized and thought content was normal. Her insight and judgment were fair. On May 2007 treatment, the diagnoses included mood disorder not otherwise specified, anxiety, and cocaine abuse. The Veteran was fully oriented. Her affect/mood was anxious and labile. Her speech was clear but rambling in discussing her multiple medical problems. Her motor behavior included occasional jerky motions of the lower limbs and rocking. Her thought process was loose and thought content included auditory hallucinations. Her insight was low, and her judgment was fair. Medications for treatment of psychosis not otherwise specified were refilled. On April 2012 treatment, the Veteran reported she had been using cocaine off and on for 30 years, despite having gone through treatment. She reported anxiety, inability to cope with daily activities, and interpersonal relationship problems. She denied sleep complaints. She was fully oriented and her speech and appearance were normal. Her attitude was not distractible, inattentive, disinterested, or indifferent, and she showed no inability to engage. She was not guarded or defensive, and she was cooperative. Her mood was euthymic and appropriate to her affect which was full-ranging and normal. Her thought processes were not impaired, and no thought disorder was noted. Her insight was impaired. The assessments included cocaine-induced disorder during intoxication, and other specified drug induced mental disorder. On February 2013 treatment, the Veteran reported anxiety which came and went, no sleep complaints, and no inability to cope with daily activities. She reported that she was not using cocaine and was attending addiction counseling. She was fully oriented, her cognitive functioning was normal, and her memory was unimpaired. Her speech was normal. Her appearance and grooming were normal. She demonstrated psychomotor restlessness. Her attitude was not abnormal, distractible, inattentive, disinterested, or indifferent. She showed no inability to engage. She was not guarded or defensive, and was cooperative. Her mood was frustrated, euthymic, and appropriate to her affect which was normal and full-ranging. Racing thoughts were demonstrated. Her thought processes were not impaired, and a thought disorder was not noted. Her insight was intact. The diagnosis was bipolar disorder not otherwise specified. On June 13, 2014 VA examination, the Veteran reported that her first child was born prematurely and died at six weeks old, and her third child was shot and killed; her two surviving sons were in prison for “bad decisions”, and she had regular contact with them. She reported having a current boyfriend of about seven years. She reported having daily contact with her mother and sister, and that she rented a house from her sister. She reported talking to her sister-in-law and her friend of about 37 years, and otherwise she had little social support. She reported that she last had paid employment in 1997, when she moved back to Chicago after her sons were incarcerated. She reported receiving SSA disability benefits since 2002 for mental health issues. She reported being arrested multiple times for drug charges, most recently in 2003, and she had a lot of problems with cocaine use for years; she reported that she finally stopped using in 2003. Her psychiatric symptoms included anxiety, suspiciousness, chronic sleep impairment, persistent delusions or hallucinations, and persistent danger of hurting herself or others. On mental status exam, the Veteran was very fidgety and needed to take a break after about an hour because she was not feeling well. The diagnosis was bipolar I disorder, with psychotic features. The examiner opined that the diagnosed disorder resulted in occupational and social impairment with reduced reliability and productivity. On July 2016 VA examination, the Veteran reported that she continued to have distressing intrusive thoughts about her unpleasant experiences in service, with occasional distressing dreams about the events. She reported that receiving letters from the government or her legal representatives caused her to become tense and anxious. She avoided thinking about and talking about her experiences in service. She reported she did not go to VA for treatment as doing so reminds her of the military. She reported being distrustful of others; and that her mood is often dysphoric and she finds it difficult to feel happy. She reported being irritable and at times verbally aggressive, or physically aggressive if she feels threatened. She reported hypervigilance and impaired sleep characterized by restlessness and delayed sleep onset. She reported having contact with her sons, a personal attendant, church friends, and people in the community. She reported that she became too physically impaired to work in 2002 and no longer worked. Her psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, impaired impulse control such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. On mental status exam, the Veteran was dressed casually and unkempt. She was cooperative, but seemed ill at ease initially. Her facial expression was tense at first, then relaxed a bit. Her eye contact improved over the course of the evaluation. Her speech at times was slurred but easily understood. She was fully oriented. Her thought processes were linear, logical and future oriented. No paranoid or delusional thinking was evident, and she did not appear to be responding to any internal stimuli. Her memory was within normal limits. She denied suicidal or homicidal ideation or intent. She denied a history of self-directed violent behavior. Her insight and judgment were intact. She reported periods of tearfulness and sadness and periods of verbal aggressiveness when angry or frustrated. The diagnosis was other specified trauma- and stressor-related disorder secondary to sexual harassment in the military. The examiner opined that the Veteran’s symptoms have had a significant effect on her social and occupational functioning, and were not the result of a substance disorder. The examiner opined that the psychiatric diagnosis results in occupational and social impairment with reduced reliability and productivity. The July 2016 examiner noted that the Veteran was referred for psychological testing in 1994 and 1995 after her first cerebrovascular accident. At that time, she was described as tense, impatient, restless, depressed, easily startled, withdrawn, anxious, and someone who did not take good care of herself. The examiner opined that, while the purpose of those evaluations was to ascertain her cognitive functioning post-CVA, “many of the symptoms noted are ones [the Veteran] has struggled with since her reported sexual harassment incidents” in service. Based on this evidence, a June 2017 rating decision granted service connection for a psychiatric disorder manifested by anxiety and psychosis, rated 10 percent rating effective October 31, 2003 to June 13, 2014, and 70 percent from that date. In her April 2018 application for a TDIU rating, the Veteran stated that her psychiatric disability first affected her full-time employment in January 1998, when she also became too disabled to work, and that she last worked full time in January 2001. She stated that she last worked a civilian job in 1998 and she was medically discharged from the Army National Guard in March 2001. She stated that attended several years of college but did not complete a degree. On April 2018 VA examination, the Veteran reported that she lived alone, two doors down from her mother; she reported seeing her mother and sister daily. She reported having a part-time caretaker who cooked and cleaned for her, and that her mother and sister cared for her as well. She reported having regular contact with her two sons and that she had no friends. She reported that a typical day involved staring out the window or watching television, wishing she had a job and feeling depressed. She reported feeling depressed at times and not feeling like doing anything and feeling worthless. She denied suicidal ideation, intent, or plans. She reported getting irritable and angry at times, particularly upon leaving the house to go to the grocery store. She reported getting about three hours of sleep per night, having difficulty sustaining sleep, and feeling sleepy during the day. She denied nightmares. She reported that she does not trust anyone, particularly men. She felt detached from others. She was irritable and angered easily. She reported hypervigilance and avoiding going to V.A. because it reminds her of her military service. She reported concentration problems. Her reported psychiatric symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work-like setting, impaired impulse control such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. On mental status exam, the Veteran was appropriately dressed and groomed. At times she appeared sleepy, but was alert and attentive. She showed no significant impairment of communication. Her thought processes were normal and goal-directed with no signs of hallucinations or delusions. Her eye contact was appropriate. She denied any obsessive ruminative thoughts. Suicidal and homicidal ideation were denied. Her remote and recent memory were grossly intact. Her affect was irritable throughout and her mood was “mellow” due to the effect of her medications. Her speech was logical and goal-directed, with rate, rhythm and flow within normal limits. She was fully compliant and cooperative. The examiner opined that the Veteran’s psychiatric disability results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner opined that the Veteran’s problems with sleep and intrusive thinking likely cause difficulty with recalling tasks spontaneously; she would more likely than not need to write down instructions and tasks, and, as such, could frustrate an employer who expects these basic work task abilities. The examiner opined that, because of impaired abilities from her psychiatric disability to think efficiently and to function independently needed to secure and maintain substantial and gainful work, the Veteran would likely have difficulties maintaining a work pace appropriate to the given work load. The examiner opined that her levels of concentration, memory problems, and inflexibility around thinking would more likely than not preclude an ability to perform complex or varied tasks in an occupational setting, and her symptoms would more likely than not impair her abilities to relate to others in an occupational setting. The examiner opined that she would likely have difficulties giving or receiving instructions secondary to her irritability and hypervigilance. The examiner opined that, given her hypervigilance, sleep problems, and irritability, she would likely have difficulties with adapting to a change in work assignment, focusing on multiple tasks simultaneously, screening out environmental stimuli, and processing information (e.g. understanding, analyzing, synthesizing). Based on this evidence, a May 2018 rating decision granted a TDIU rating and basic eligibility to DEA benefits effective April 2, 2018. A February 2019 rating decision granted an earlier effective date of June 13, 2014 for each. The Veteran submitted an April 2019 private medical opinion based on a review of the record and an interview with the Veteran. The provider, a psychologist, noted that the earliest record reviewed, from July 1993, included a diagnosis of adjustment disorder with mixed emotional features. The provider opined that in spite of the Veteran’s extensive treatment and medication between the early 1990s and the present, her psychiatric symptoms remain active and florid and have been so throughout the entire period of time; the provider opined that although some of the symptoms may have waxed and waned over the years, an examination of the total picture reveals that the symptoms have existed prior to October 2003 through the present. The provider noted that from October 2003 through August 2004, the treatment notes indicate that the Veteran was homeless, she tried to commit suicide, and she was using drugs and alcohol to self-medicate her mental symptoms. The provider opined that the Veteran’s psychiatric disorder has caused her occupational and social impairment with deficiencies in most areas since at least October 2003. The provider opined that this impairment has been due to the well-documented symptoms discussed in the medical records including suicidal ideation (noted in August 2004), paranoid ideation (July 2002 and July 2012), impaired impulse control and rage episodes (April 1996, June 2001, and July 2012), auditory hallucinations (August 2009 and July 2012), depressed mood (May 2005, July 2012, April 2018), memory deficits (June 2001), neglect of personal appearance and hygiene (July 2012), difficulty in adapting to stressful circumstances (March 1994), and an inability to establish and maintain effective relationships (December 2004). The April 2019 provider further opined that based on the Veteran’s symptoms related to her psychiatric impairment, the Veteran would not be able to follow work rules, relate to coworkers, deal with the public, use appropriate judgment, or interact in a purposeful way with supervisors and coworkers. The provider cited an event in December 2004 when the Veteran called the county health agency stating that she was unable to control herself while yelling and using profanity with staff. The provider opined that the Veteran would not be able to deal with work stresses or work independently, which was discussed specifically in an October 1999 treatment note. The provider opined that the Veteran’s attention and concentration are impaired and she would not be able to complete tasks in a timely fashion. The provider opined that the Veteran’s psychiatric disorder was and continues to be at this level of severity from at least October 2003 through the present. The provider opined that the Veteran has been unable to secure and follow substantially gainful employment solely as a result of her psychiatric disability since at least October 31, 2003. Additional VA and non-VA treatment records throughout the appeal period show symptoms similar to those found on the examinations described above. The Veteran has also submitted lay statements describing her difficulties due to her psychiatric disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Psychiatric disability is rated under the General Rating Formula for Mental Disorders. A 10 percent evaluation is warranted when the evidence demonstrates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted when the evidence demonstrates 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, recent events). A 50 percent rating is warranted when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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); 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 or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9400. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Because “[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology,” and the plain language of this 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 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, 116-17 (Fed. Cir. 2013). “[I]n the context of a 70[%] rating, § 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 117. Although a veteran’s symptoms are the “primary consideration” in assigning a rating under § 4.130, the determination as to whether the veteran is entitled to a 70% disability evaluation “also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). The Board finds that, throughout (since the award of service connection), the psychiatric symptoms and functional impairment reported by the Veteran and noted by VA and private examiners and treatment providers (such as suicidal ideation; near-continuous depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); and difficulty in adapting to stressful circumstances (including work or a worklike setting)) show, or at least approximate, a level consistent with occupational and social impairment with deficiencies in most areas. The July 2016 VA examiner noted that upon 1994 and 1995 psychological testing (after her first cerebrovascular accident), the Veteran was described as tense, impatient, restless, depressed, easily startled, withdrawn, anxious, and someone who did not take good care of herself, and opined that, while the purpose of those evaluations was to ascertain her cognitive functioning post-CVA, “many of the symptoms noted are ones [the Veteran] has struggled with since her reported sexual harassment incidents” in service. Additionally, the April 2019 private examiner opined that the Veteran’s psychiatric symptoms have remained active and florid throughout the appeal period despite extensive treatment and medication, and that the psychiatric disorder has caused her occupational and social impairment with deficiencies in most areas since at least October 31, 2003, with numerous citations to treatment records and other examinations demonstrating the extent and severity of her symptoms. Progress notes likewise reflect a level of functioning that has been fairly consistent throughout. Accordingly, the Board finds that the criteria for a 70 percent rating were met throughout, and that such rating is warranted throughout (from the earlier effective date of October 31, 2003). The evidence of record does not show that symptoms that met (or approximated) the criteria for a 100 percent schedular rating were manifested at any time under consideration. It is not shown that the Veteran has had symptoms productive of total occupational and social impairment. While on occasion she has self-reported symptoms of greater severity, it is not shown by the record that such symptoms resulted in such total impairment. No examiner, either VA or non-VA, has opined at any time that the Veteran’s psychiatric signs and symptoms resulted in total occupational and social impairment. The record does not show that she requires assistance in tending to finances, gross impairment in thought processes or communication is not shown, her behavior has not been shown as grossly inappropriate, and she is not in persistent danger of hurting herself or others. Furthermore, she is able to live on her own (although requiring assistance due to physical limitations), and has maintained relations with her mother, sister, and two adult children. The lay statements the Veteran submitted in support of this claim detail the types of problems that result from her psychiatric symptoms. The levels of functioning impairment described are encompassed by the criteria for the 70 percent rating assigned. Accordingly. a 100 percent schedular rating is not warranted. 2. Entitlement to an earlier effective date of October 31, 2003 for the award of a TDIU rating is granted. 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 U.S.C. § 1155; 38 C.F.R. § 4.16. 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. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall 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). Consideration may be given to the veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by non- service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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. As further observed by General Counsel, “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. The Veteran contends that she has been unable to maintain substantially gainful employment since October 2003 due to her service-connected psychiatric disability. As the Board has herein granted an earlier effective date of October 31, 2003 for the award of a 70 percent rating for the Veteran’s psychiatric disability, the schedular rating requirement for a TDIU rating under 38 C.F.R. § 4.16(a) is met from that date. Consequently, the critical (and dispositive) question remaining is whether due to the service-connected disability she was unable to engage in a substantially gainful occupation prior to June 2014 (and from October 31, 2003). The Board again notes that SSA records reflect that the Veteran was granted disability benefits as of June 2000 primarily based on psychiatric impairment. The Board further notes that the Veteran has not worked since her discharge from service in 2001. The Board also notes the July 2016 VA examiner’s opinion regarding the consistency of the Veteran’s symptoms since service, and the April 2019 private examiner’s opinion that the Veteran would not be able to follow work rules, relate to coworkers, deal with the public, use appropriate judgment, or interact in a purposeful way with supervisors and coworkers (citing an October 1999 treatment record and a December 2004 event, as well as her opinion that the Veteran’s psychiatric disorder was and continues to be at this level of severity from at least October 2003 through the present), rendering her unable to secure and follow substantially gainful employment solely as a result of her psychiatric disability throughout since October 2003. In summary, the Board finds that the evidence of record reasonably demonstrates that the Veteran’s service-connected disability has been of such nature and severity as to have precluded her maintenance of employment in any occupation consistent with her education and occupational experience since October 31, 2003. Consequently, a TDIU rating is warranted from that date. REASONS FOR REMAND Entitlement to an effective date earlier than June 13, 2014 for the award of eligibility to DEA benefits remanded. Basic eligibility for DEA benefits under 38 U.S.C. Chapter 35 is established in one of several ways, including being the child of a veteran who has a total and permanent disability rating from a service-connected disability. 38 U.S.C. § 3501(a)(1)(A); 38 C.F.R. § 21.3021. The issue of entitlement to an earlier effective date for such benefits is therefore inextricably intertwined with the downstream issue of the rating assigned for the Veteran’s psychiatric disability during the additional period as a result of the decision to grant both a 70 percent rating for psychiatric disability and a TDIU rating, each from the earlier effective date of October 31, 2003. Due process requires that the AOJ must first implement the awards, readjudicating in the first instance entitlement to DEA from an earlier effective date. The matter is REMANDED for the following: Implement the Board’s award of an earlier effective date of October 31, 2003 for the awards of a 70 percent rating for the Veteran’s psychiatric disability and for a TDIU rating; arrange for any further development indicated; and adjudicate the matter of entitlement to an earlier effective date for the award of basic eligibility to DEA benefits, considering the earlier effective dates assigned, and any further indicated development completed. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.