Citation Nr: 21001008 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 19-26 194 DATE: January 6, 2021 ORDER An effective date of March 19, 2018 for the assignment of a 100 percent rating for posttraumatic stress disorder (PTSD) is granted. An effective date of March 19, 2018 for basic eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. The competent and probative evidence of record shows that the Veteran met the criteria for a 100 percent rating for PTSD as of March 19, 2018. 2. The Veteran has been shown to be permanently and totally disabled as of March 19, 2018. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 19, 2018, and no earlier, for the assignment of a 100 percent evaluation for PTSD have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The criteria for an effective date of March 19, 2018, and no earlier, for basic eligibility to DEA under 38 U.S.C. Chapter 35 have been met. U.S.C. §§ 3510, 5110, 5113; 38 C.F.R. §§ 3.400, 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1968. In a September 2019 decision, the Board assigned an effective date April 12, 2018 for the Veteran’s PTSD. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 order, the Court granted a Joint Motion for Partial Remand (JMPR), which vacated that portion of the Board decision that did not assign an effective date earlier than April 12, 2018. 1. Entitlement to an effective date earlier than April 12, 2018 for the assignment of a 100 percent rating for PTSD The Veteran seeks an earlier effective date for the award of a 100 percent disability rating for PTSD. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date of March 19, 2018, is warranted Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400, 38 C.F.R. § 3.2500(c). The effective date of an award of disability compensation for claims to reopen is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Here, the Veteran’s claim for an increased evaluation was date-stamped as received on July 12, 2018. A September 2018 VA Disability Benefits Questionnaire (DBQ) relates that the Veteran had total occupational and social impairment. The September 2018 rating decision on appeal assigned a 100 percent evaluation, effective July 12, 2018, the date of receipt of the claim for an increased evaluation. A review of the record reveals that there were no other pending, unadjudicated claims for a higher rating for PTSD prior to July 12, 2018. Thus, the Board has determined that July 12, 2018, is the date of claim for the increased rating. VA treatment records include an April 12, 2018, VA primary care telephone liaison note. It provides that screenings for depression and PTSD were positive. Regarding depression, the Veteran reported that over the past two weeks, more than half the days he had been bothered by having little interest or pleasure in doing things and feeling down, depressed or hopeless. Regarding PTSD, the Veteran reported that over the past month he was constantly on guard, watchful or easily startled, and felt numb or detached from others, activities or his surroundings. The Veteran was to be managed in primary care. An April 13 primary care unscheduled note relates that the Veteran was recently out on bond from killing a young man that beat him up. He shot and killed the man, had been incarcerated for the past few weeks and was awaiting trial. He stated that his PTSD had worsened since the incident, and that he had been depressed every day. An April 13 mental health TRIAGE note relates that the Veteran presented to GMHC Access Clinic as a walk-in after being referred by PACT after he reported that he killed a male last month who had beaten him up. On mental status examination, the Veteran was alert with euthymic mood and constricted affect. Grooming and hygiene were appropriate. Thought continuity and content were coherent and organized and the Veteran denied homicidal and suicidal ideation. Speech was clear and conversational with normal rate, tone and volume. The Veteran was oriented times three, and recent and remote memory was within normal limits during triage visit. Regarding attention span and concentration, the Veteran was able to follow conversation. An April 13 mental health access clinic note includes another mental status examination that day that was essentially normal or negative except that the Veteran’s affect was restricted, and his insight/judgment were poor. The Veteran reported the details of the recent physical altercation with a 22-year-old male on the street which triggered his PTSD symptoms and he felt that he was fighting for his life in Vietnam. He wanted to drive back to his house, get a gun and shoot the man. However, when the Veteran realized that he had the gun in his vehicle, he returned to the scene and shot the man, which resulted him going to prison for 3 weeks. The Veteran reported mixed emotions. He was happy that he was alive but sad at the same time that he shot a young guy. The Veteran currently denied SI/HI/AVH. He reported feeling depressed every day, and anhedonia and social withdrawal, but no hopelessness or helplessness were reported by the Veteran. The Veteran reported worsening of nightmares and flashbacks, and also reported hypervigilance. The Veteran was started on medication to treat anxiety, irritability, and mood dysregulation related to PTSD. An April 17 mental health outpatient note relates that the Veteran had depressed mood, anhedonia and guilt or worthlessness. In the JMPR, the parties asked that the Board identify the date the reported shooting incident occurred as evidence of the date the Veteran’s PTSD symptoms met the criteria for a 100 percent disability rating. In September 2020, the Veteran’s attorney submitted State Court charging documents identifying March 19, 2018, as the date of the shooting incident. The Board finds that the Veteran is entitled to an earlier effective date of March 19, 2018 for the assignment of a 100 percent evaluation for PTSD. This reflects the earliest date of record of the shooting incident where the Veteran shot and killed another person resulting from a severe PTSD flashback. Accordingly, the Veteran met the criterial for a 100 percent disability rating effective March 19, 2018. Therefore, entitlement to a 100 percent disability rating for PTSD effective March 19, 2018 is granted. 2. Entitlement to an effective date earlier than April 12, 2018 for basic eligibility DEA under 38 U.S.C. Chapter 35 The Veteran seeks an earlier effective date for basic eligibility to DEA. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date of March 19, 2018, is warranted. In the September 2019 decision, the Board awarded the Veteran an earlier effective date of April 12, 2018, for both the100 percent evaluation for PTSD and DEA benefits. Given the Board’s grant here of an effective date of March 19, 2018 for the 100 percent evaluation for PTSD, entitlement to DEA arose on March 19, 2018. Therefore, an effective date of March 19, 2018, for the award of DEA is granted. The Board has found no basis in this case on which eligibility for DEA benefits could be established prior to March 19, 2018. 38 C.F.R. § 3.807(a). Therefore, the preponderance of the evidence is against an effective date earlier than March 19, 2018 for basic eligibility for DEA. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, Associate Counsel 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.